knowledge 2 August 2019 |

Corporate Immigration Update

1. Citizenship Applications

Pursuant to the Citizenship Act 1956, the Minister can grant a naturalisation application if satisfied that the applicant “has had a period of one year’s continuous residence in the State immediately before the date of the application”. In the recent case of Jones v Minister for Justice and Equality, the High Court finding that the term ‘continuous’ should be assigned its ordinary dictionary meaning of unbroken, uninterrupted, connected in time or space, has resulted in a scenario where naturalisation applications cannot be granted if the applicant has spent any time outside of the State in the year before their application.  While Mr Justice Max Barrett acknowledged that such an interpretation may seem unfair in a modern world where people travel regularly, he considered that the cure for such unfairness lies in the gift of the legislature.

This case has been appealed and a date was set for it to be heard by the Court of Appeal.  The Department of Justice and Equality quickly issued an announcement to confirm that they were taking steps to remedy the implications of the judgment and advised applicants to submit their applications in the normal course and not to cancel upcoming travel plans.  This announcement has now been replaced on the Department’s website with an update which confirms that the Minister has obtained Cabinet approval for a proposed Bill, which seeks to resolve the issue that has arisen in the recent High Court judgment.

New Online Immigration Registration Renewal System for 3rd Level Students

From 26 August 2019, third level students who live in the greater Dublin area can renew their immigration registration online. This will replace the current system which requires students living in Dublin to present in person at the Irish Naturalisation and Immigration Service (“INIS”) Registration Office in Burgh Quay.  The online system will allow students to submit their renewal application and all supporting documents online, pay the registration fee online and then post their passport to INIS.

As students comprised 40% of immigration permission registrations in 2018, this online system should alleviate some of the pressures on the Burgh Quay office.  It is expected that up to 8,000 students will use this online renewal system between September and November.

2. Employment Permits

The Employment Permits (Amendment) (No. 2) Regulations 2019 have introduced the following changes to the permit system:

• the annual remuneration thresholds for Critical Skills Employment Permits will increase from 1 January 2020.  For the restricted number of strategically important occupations contained on the Highly Skilled Eligible Occupations List, it will increase from €30,000 to €32,000 and for all other occupations, other than those on the Ineligible Categories of Employment for Employment Permits or which are contrary to the public interest, it will increase from €60,000 to €64,000;
• where a Labour Market Needs Test is required, from the 1 January 2020 the period of time an employer must advertise the position with the Department of Employment Affairs and Social Protection on the EURES website has been increased from 14 days to 28 days;
• the Highly Skilled Eligible Occupations List has been updated; 
• the requirement for an applicant’s passport expiry date to be 12 months or more after the date of application has been reduced to 6 months.

3. Permit Application Refusal

In the case of Olaneye v The Minister for Business, Enterprise and Innovation, a Nigerian national was unsuccessful in his application for judicial review seeking an order to quash the Minister’s decision to refuse his application for a Critical Skills Employment Permit.  The reasons for the refusal of the permit were twofold: (1) that the salary was less than the €60,000 threshold and (2) that the role was not on the ‘Highly Skilled Occupations List’.  While this case specifically relates to the duty to give reasons, it serves as a reminder for permit applicants and employers to pay close attention to the job title and the sections of a permit application which ask about the main functions of the jobs, the qualifications, skills, knowledge and experience required for the job and the relevant qualifications, skills, knowledge and experience of the applicant.

Our Employment, Pensions & Incentives Team has significant experience in advising many of Ireland’s major employers on corporation immigration matters.  Please contact Aoife Clarke at aoife.clarke@mccannfitzgerald.com or any member of our team for further information.