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Immigration and Residency in Ireland

Tanya Ward

Research and Development Officer 

City of Dublin Vocational Education Committee (CDVEC)

Logo of City of Dublin Vocational Education Committee

Acknowledgements

Thanks are due to both Cathryn Costello, Director of the Irish Centre for European Law and especially Hilkka Becker, Rechtsanwältin with Stewart & Co. for their helpful and constructive comments on this paper. Thanks also, to Breda Naughtan from the Reception and Integration Agency for supplying me with information to write this paper.

Contents

Introduction

  1. European Union (EU) nationals
  2. European Economic Area (EEA) nationals
  3. Convention Refugees
  4. Programme Refugees
  5. Asylum Seekers        
  6. Leave to remain on humanitarian grounds
  7. Leave to remain on the basis of parentage of an Irish citizen
  8. Family Reunification
  9. Marriage to Irish and EU nationals                                                 
  10. Business Permit                                                                                            
  11. Work Permit
  12. Work Visas and Work Authorisations                                                         
  13. Student Visa
  14. Tourist Visa
  15. Naturalised Irish Citizens                                                                             
  16. Post Nuptial Citizenship                                                                               
  17. Persons who have lodged applications for leave to remain and are still waiting                                    
  18. Complementary Protection
  19. Children                                                                                                         
  20. Separated Children                                                                                       

      Conclusion


List of Figures

Suggested Reading                    

Appendices


Introduction

Historically Ireland has not received any significant migration inflows. This is on account of it being in the past a poor peripheral European State with no traditional colonial ties to countries in the developing world/Majority world. In reality, Ireland is a country that has been scarred by economic deprivation and a long history of emigration that extends back to Famine times. There have been a small number of Jewish refugees who fled to Ireland in the nineteenth and early twentieth century, but their entry and presence was regrettably and severely restricted.[1] Up until recently the only immigration that has been experienced by modern Ireland consisted of small controlled refugee movements, and the settlement of now established minorities such as the Italian and Chinese communities.

The first two refugee groups to arrive in Ireland were the Hungarians and Chileans under unilateral agreements with the UN. In 1956, 530 Hungarians were accommodated in a disused army camp outside Limerick. Life in the camp was grim which resulted in the residents going on hunger strike and leaving for Canada once the opportunity arose.[2]  The Chilean exodus of 1973 saw the admission of 120 refugees, many of whom returned home as soon as they got the chance. Then 212 Vietnamese ‘boat people’ came to Ireland in 1979 and it has now become one of the biggest Asian communities with 824.[3]

In 1985, 26 Iranian Baha’is were permitted to settle. Then in 1992, 770 Bosnians soon followed. Many were medical evacuees and were housed in hostels and Cherry Orchard (a former nurses’ home). Certainly the treatment the Bosnians received was considerably better than any of the previous groups. The principal reason for this is that the responsibility for programme refugees moved from the Department of Defence to Department of Foreign Affairs. The latter set up the Refugee Agency in 1991 which was mandated to settle and support programme refugees. The Bosnian population has now expanded through natural increase and family reunification to roughly 1,200.[4]

A very different Ireland has emerged in the 1990s, and with it, the end of large-scale emigration. In the period 1995-2000, approximately a quarter of a million persons migrated to Ireland, of whom about half were returning Irish and the rest, either other Europeans or Americans. The ‘Celtic boom’ together with other factors has brought about this dramatic change. Ireland, while still deeply class-ridden society,[5] enjoys one of the highest GDP growth rates and lowest unemployment ratios in Europe.  The creation of more jobs and a higher international profile has meant that this growth has not gone unnoticed.

The asylum seeking phenomenon

MacÉinrí (2001) states that asylum seekers constitute 10% of all foreign immigrants to Ireland since 1995. But what is an asylum seeker? An asylum seeker is a person who arrives independently in the State and asks to be recognised as a refugee under the 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol. According to Article 1(2) the Convention and the Protocol, a refugee is a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country… or owing to such fear, is unwilling to return to it”.

The Refugee Convention was formally adopted on 28 July 1951, and forms the foundation of the international legal system designed to offer protection to people who have to flee their countries because of persecution or conflict. The Convention also established a framework of basic refugee rights such as the right to identity documents, access to courts, the right to work and to education. It was initially devised to afford protection to refugees uprooted after the Second World War in Europe and was limited historically to events before 1951. The 1967 Protocol removed these limitations to extend protection to refugees outside Europe and uprooted due to events after 1951. It has now become the first global treaty providing protection to refugees and there are currently 141 states that are party to it and/or the 1967 Protocol.

The term asylum seeker is a legal category recognised under international law. Ireland signed and ratified the Geneva Convention in 1956 and the Protocol in 1968. However, neither was enacted into Irish domestic law in full until November 2000.  The numbers seeking protection in the early 1990s in Ireland have been negligible. 

From the above figure, we can see that in 1992 Ireland only received 39 applications for asylum, this figure steadily rose to 424 in 1995 and then to 1,179 in 1996. However, applications have been either doubling or tripling since then. Last year, Ireland received 10,936 with an average of 1,000 applications being lodged with the Department of Justice, Equality and Law Reform a month. This new occurrence has given rise to much debate in Irish society and has challenged service providers and policy planners from the outset. While these statistics are in stark contrast to Ireland’s previous experience. However, when considered in a European context it is apparent that this growth in numbers is part of an overall trend throughout Western Europe that has been discernible since the 1980s.[6]

This new trend in Europe, the asylum phenomena, is due to a range of interdependent variables. Before the early 1980s the number of asylum-seekers arriving in Western European remained fairly stable at fewer than 100,000 annually. In the late 1970s and the 1980s the demand for labour was diminishing and European countries that had been involved in the importation of cheap labour from outside Europe, no longer required any new workers. Moreover, the Communist bloc collapsed prompting many to believe that massive numbers of people would flood into Europe - this did not happen. Both factors contributed to a period of intergovernmental co-operation and the curtailment of immigration.  Economic migrants now had to use other routes to enter Europe, the asylum process being one of them, and they were able to make use of existing social networks to do so.  Indeed, in the case of Ireland in the absence of an American-style based transparent immigration policy, has meant in practice that, some proportion of asylum seekers would more correctly be described as economic migrants.[7]

Other factors relate to the features of globalisation. The declining cost of international air travel together with increased accessibility to industrialised nations, their promotion abroad and the dissemination of information technology. In addition, the tightening of immigration controls in Europe has given rise to an extremely lucrative business – professional human trafficking. Trafficking involves the transit of people through illegal channels with the intention of entering a state and evading its immigration laws. Left with no alternative, refugees and would-be economic migrants alike have used these channels to enter the industrialised nations of the north. Finally, let us not forget that the rising figures are also a reflection of social and political instability in many refugee producing countries and the polarisation and poverty that many are forced to endure.[8]  

Clearly we can see that the growth in asylum seeking is just one symptom of the rapid and massive change Irish society is undergoing, and its increasing ‘connectedness’ with the global economy.

Objective of document

The objective of this document is to: (a) outline the different forms of legal residency categories there are in Ireland and types of citizenship there are available to non-European Economic Area nationals in Ireland; (b) delineate the social and economic rights that pertain to each and (c) state what documentation individuals should possess if they belong to one of these categories. Finally, statistics are included where possible. 


1.  European Union nationals

1.1 Definition

Initially, the free movement of workers was provided for by Article 39 (formerly Art. 48) of the EC Treaty. Thereafter, the Single European Act 1986 ensured a greater awareness of the social needs of workers crossing international European boundaries. However, European Citizenship was finally established with the agreement of the Treaty on European Union (TEU). Article 8(1) affirms that every person holding the nationality of a member state is a citizen of the union. The European Union (EU) consists of the following states: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Ireland, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom.

1.2 Statistics

There are no reliable statistics readily available on the number of EU nationals in the State for two reasons. Firstly, not all EU nationals inform the Department of Justice, Equality and Law Reform of their presence in the State, as they are not obliged to. Secondly, the last census did not ask about nationality or ethnicity. [9]

1.3 Social and economic rights

One of the main guiding principles of the EU system is that rights are provided for and granted primarily to citizens of each member state. Barrett (2000) maintains that the primary beneficiaries of Community law are EU citizens who due to their activities (they have travelled to another Member State in search of work) have brought themselves directly within the scope of Community law. For example, under articles 48-60 of the EU Treaty, individuals who are workers have the right to seek employment and work in any another Member State. Article (7) 2 affirms that they are entitled to the same ‘social and tax advantages’ as national workers i.e. they have the same right to social welfare payments if they have paid PRSI equivalents in their home country. However, they could conceivably be required to return home after a certain period of time, if they have not found employment. In addition, people who have worked and paid PRSI equivalents in their home country would be paid directly by that country on the basis that they are looking for employment here. Again, this would not be allowed for very long periods of time as the freedom of movement generally relates to workers.

Article 7(3) of Regulation 1612/68/EEC assures equal treatment for EU nationals in regard to education and training. Therefore, EU nationals have the right to attend any educational institution in Ireland and be charged the same fee rate as an Irish national. Furthermore, while the area of maintenance grants is less regulated by the Union, EU nationals are entitled to maintenance grants from their local authority or Vocational Educational Committee (VEC) providing they have satisfied certain residency requirements.

Article 9 of the same Regulation guarantees workers equal treatment in regard to housing i.e. they can be put on local authority housing lists.

Workers have the right to have their dependent family members reside with them in another Member State. Entry rights are provided for them by Directive 68/360. Article 10 of Regulation 1612/68 outlines who can join the migrant worker. They include:

  • The spouse of the worker;

  • Children, grandchildren and other descendants, provided they are under 21 or dependent on the worker;

  • Parents, grandparents and other ascendants, provided they are dependent on the worker.

The rights of spouses will be discussed in section 9 and the rights of children will be discussed in section 19.

Article 12 provides for equal treatment with respect to general education between the children of EU migrants and the children of EU nationals in the host state.

The free movements of workers can only be prevented through Article 39(3) if it was warranted on grounds of “public policy, public security or public health”.

1.4 Documentation

EU nationals should have: a birth certificate, an EU passport or an identity document from their country of origin.


2. European Economic Area (EEA) Nationals

2.1 Definition 

Under the Agreement on the European Economic Area (EEA) 1992 and Protocol 1993, EEA nationals enjoy the freedom of movement between member states. The EEA includes all the EU states with the addition of Liechtenstein, Iceland and Norway. Hailbronner (2000) asserts that the EEA Agreement nearly equates the legal situation of nationals from aforementioned three countries with EU citizens.

2.2 Statistics

Again there are no accurate statistics available for the reasons outlined above in 1.2.

2.3 Social and economic rights

EAA nationals have the right to move between signatory states and take up employment and reside. There are a number of EU Directives in place, which govern workers’ health and safety as well as gender equality. But generally EEA nationals would have the same social and economic rights as Irish nationals, particularly with regard to the freedom of movement and establishment and so on.  

Married spouses of EEA citizens that are non-EEA nationals do not have the same rights as their EEA spouses. In practice however, as long as the EEA citizen is in employment or self-employed, she or he would be treated like a married Irish national thus extending her/his rights with regard to pensions, taxation, health care etc. to her/his spouse. Also, a number of Directives provide for example the right to family reunification with dependent family members to married spouses of EEA nationals.

The spouse of an EEA national has the right to take up employment throughout the territory of the host State, which means that the requirement of cohabitation does not apply as long as the marriage can be considered subsisting.

2.4 Documentation

EAA nationals will have a birth certificate and a passport.


3. Convention Refugee

3.1 Definition

A Convention refugee is defined in Section 2 of the Refugee Act, 1996 as,

a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it…

Moreover,

"membership of a particular social group” includes membership of a trade union and also includes membership of a groups of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation.

3.2 Statistics

 

1992

1993

1994

1995

1996

1997

1998

1999

2000

(17/11)

Applications determined at first instance
7
9
34
90
172
142
133
91
71

Figure 2: Number of applicants recognised as refugees at first instance 1992-2000.[10]
Source: Department of Justice, Equality and Law Reform.

 
1990-1992
1993
1994
1995
1996
1997
1998
1999
2000
Granted refugee status after Appeal
1
1
1
14
98
393
273
9
 

Figure 3: Substantive Asylum Appeals – by year of first stage applications to 17/11/00
Source: Refugee Appeals Tribunal

3.3 Social and economic rights

According to Section 3 (1) of the Refugee Act 1996 (as amended) refugees are entitled to seek and enter employment, to carry out a business, trade or profession and to have access to education[11] and training in the State in the like manner and to the like extent in all respects as an Irish citizen. Moreover, they have the right to family reunification.[12] 

In addition, they are entitled to receive, upon and subject to the terms and conditions applicable to Irish citizens, the same medical care and services and the same social welfare benefits as those to which Irish citizens are entitled.

It is important to note that refugees have the right to language provision, support and job preparation, which is provided for by Integrate Ireland[13] and the Vocational Education Committee’s (VEC’s).

3.4 Documentation

Convention refugees will have a letter from the Department of Justice, Equality and Law Reform[14] granting them refugee status and on this basis they will be issued with a Certificate of Registration or Residence Permit.[15] They may also have what is called a Convention Travel Document, which they have in place of a passport.


4. Programme Refugees

4.1 Definition

Section 24 of the Refugee Act, 1996 defines a Programme Refugee as

a person to whom leave to enter and  remain in the State for temporary protection or resettlement as part of a group of persons has been given by the Government ….. whether or not such person is a refugee within the meaning of the definition of “refugee” in section 2.

These are persons who are invited to Ireland by the Government usually in response to a humanitarian crisis and at the request of the United Nations High Commissioner for Refugees (UNHCR).

4.2 Statistics

Figure 4: No. of Programme Refugees in Ireland – December 2000 [16]
Source: Refugee Agency

4.3 Social and economic rights

Programme refugees have the same rights as Convention refugees as outlined in Section 3 of the Refugee Act while they remain in the State.

4.4 Documentation

Programme refugees will have a letter of reference from the Reception and Integration Agency[17] stating that they are a programme refugee. On the basis of this they will be issued with a Residence Permit. They are also entitled to a Travel Document.


5. Asylum Seekers

5.1 Definition

An asylum seeker is a person who arrives spontaneously in the State and asks to be recognised as a refugee under the 1951 Convention and 1967 Protocol.

5.2 Statistics

Figure 6: No of asylum applications for 1998 & 1999
Source: Department of Justice, Equality and Law Reform

1999

Applications

 

Romania

2,226

Nigeria

1,895

Poland

600

Moldova

275

Algeria

273

Other

2,455

Total

7,724

     

1998

Applications

 

Nigeria

1,729

Romania

998

DRC. Congo

264

Libya

186

Algeria

178

Other

1,294

Total

4,649


5.3 Social and economic rights

Asylum seekers are not permitted to leave the State without the consent of the Minister for Justice, Equality and Law Reform,[18] to seek or enter employment or carry on any business or to trade during the period before the final determination of their case.

Asylum seekers who have been in the State for more than a year including the 26th of July 1999 are permitted to seek and take up employment. They currently have the right to job preparation and placement through the FAS Asylum Seeker Unit.[19] Moreover, the White Paper on Adult Education – Learning for Life – states that asylum seekers with the right to work have access to Voluntary Training Opportunity Scheme (VTOS) courses, literacy and language provision.

All other asylum seekers are not permitted to work.  In fact they can face criminal prosecution under Section 9 (7) of the Refugee Act 1996 if they are found to be working illegally.  They can be imprisoned for a term not exceeding a month and or fined £500. Nonetheless, employers do not face any penalty if they are caught hiring non-nationals with no right to work in Ireland.  

Adult asylum seekers do not have the right to state funded education.[20] However, the aforementioned White Paper does recommend that asylum seekers be given access to literacy, language provision and mother culture support.

Asylum seekers do have the right to medical care and some are in receipt of full Supplementary Welfare Assistance (SWA) payments, and rent supplementation if they secure private rented accommodation. However asylum seekers who have arrived in the State after April 2000 are being provided for through a system of direct provision and are regionally resettled to full-board accommodation.[21] Under direct provision they receive £15.00 a week per adult and £7.50 per child. They may apply to their Community Welfare Officer (CWO) for exceptional needs payments. Furthermore, asylum seekers (including those on direct provision) with dependant children can apply for Child Benefit.

5.4 Documentation

Up until the 20th of November 2000, asylum seekers had been issued with an Asylum Card by the Dept. of Justice, Equality and Law Reform.  However, with the full implementation of the Refugee Act 1996, Section 9 (3) states that asylum applicants will be issued with a Temporary Residence Certificate (TRC). It includes the applicants name, photograph and the date they lodged their application for asylum. 

It is worth mentioning that the Department of Justice usually takes all other identity documents from asylum seekers and holds them on file while their application for asylum is being processed.


6. Leave to remain on humanitarian grounds

6.1 Definition

Leave to remain is granted at the discretion of the Minister for Justice to allow on humanitarian grounds, a person to remain in the State who does not fully meet the requirements of the 1951 Convention and 1967 Protocol.

6.2 Statistics

1997

1998

1999

2000

2001 31/01)

120

27

39

18

3

Fig 7: Number of individuals granted leave to remain on humanitarian grounds – 1997-2001
Source: Dept. of Justice, Equality and Law Reform.

6.3 Social and economic rights

Individuals with humanitarian leave to remain have almost all the same social and economic rights as a refugee. They have the right to seek and enter employment, to establish a business, to travel and to access fulltime education and training initiatives, to go on the list for local authority housing and medical care.

The will have the right to family reunification.[22] 

6.4 Documentation

Persons with humanitarian leave to remain will have a letter from the Department of Justice confirming this and on this basis they will be issued with a Residence Permit.


7.  Leave to remain on the basis of parentage of an Irish citizen

7.1 Definition

According to the Constitution, the Irish Nationality and Citizenship Acts, 1956 and 1986, anyone born within the 32 counties is an Irish Citizen. More recently this has been included in the Belfast Agreement 1998. Article 2 of the Constitution states that:

“It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation  cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.”

In 1987, in a case taken to the High Court [23] it was ruled that the parents of Irish born children had the right to remain and reside in the State. The case involved two non-nationals, the Fajujonu’s, who had been living in the State illegally. When their presence became known to the Garda National Immigration Bureau, the Minister for Justice, attempted to deport them. However, during the time they had been residing in the State they had two Irish born children. It was argued by their lawyer that the children, as Irish citizens, had the right to family life, which is provided for in the Constitution, and therefore had the right to have their mother and father parenting them in the State. As a result any non-national with an Irish child can obtain a Residence Permit provided that their presence has not been deemed unconducive to the public good. However it must be noted that the parents will automatically lose their right of residence if the child dies.

Parents may have to prove in certain cases that they are actively parenting the child, or indeed, are the parent of the child.[24]

7.2 Statistics

Number

  Year

1996

   142

1997

   107

1998

       0

1999

1,227

2000

   909

2001 – 31st Jan.

   200

Figure 8: No. of current or former asylum seekers who have been granted permission to remain in the State on IBC grounds  1996-2000
Source: Department of Justice, Equality and Law Reform

According to the Department of Justice there are currently 712 applications outstanding with the Immigration Division. It should be noted, however, that many of these cases relate to two applicants – the mother and father.

From the statistics above it is apparent that leave to remain was not granted to anyone in 1998. This is due to the fact that the Minister for Justice consulted the Attorney General in that year regarding the Fajojunu case. However, the Minister was advised that the case was legally binding, not only because of the Constitution, but also, on account of the Belfast Agreement.

7.3 Social and economic rights

Parents of Irish born children have the right to seek and enter employment and to establish a business. Moreover, they have the same access to medical care and social welfare benefits as an Irish citizen and to go on the housing list. Furthermore, they have the right to access training initiatives and services such as FAS, Voluntary Training Opportunities Scheme (VTOS) and Integrate Ireland. These rights are not included in any statutory instrument.

Hailbronner (2000) argues third country nationals (non-EEA nationals) are generally excluded from European Community guarantees, except in those cases in which a special regime is applicable. In legal terms, in the absence of any Government policy or recommendation,[25] parents of children born in Ireland who are non-EEA nationals do not have the same access to third level institutions as EU citizens. For example, they will be charged international fees and will be unable to apply for a maintenance grant from the VEC or County Council to study.

This adversely affects the non-EAA older siblings of Irish born children within the family as well. For example, up until the age 18 all children within the state have the same right to education. If a non-EEA sibling turns 18 and has not acquired citizenship, they could be deported from the State. Furthermore, even if they acquired their parents’ residency status, the current restrictions - not being treated as an EU national in regard to third level education - will apply to them also. Not only do we have a situation where some children in a family have more rights than others, but also there will be a whole generation of young adults that will be effectively excluded from third level education unless the Government either legislates or issues a policy statement. However, this will not even matter if they are deported to their country of origin when they become adults. Indeed, the State will have to take action to alleviate the precarious situation that these children will find themselves in.

7.4 Documentation

Parents of Irish children will have a letter from the Department of Justice confirming this. On the basis of this they will be issued with a Residence Permit.


8. Family Reunification

8.1 Definition

Section 18 (1) of the Refugee Act 1996 provides that refugees are permitted to be reunified with members of their immediate family such as a spouse, a child under the age of 18, and dependent family members such as a grand parent, a parent, a brother, a sister, a grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.

The procedure to apply for family reunification is as follows:

  • A visa application is completed and submitted to Department of Foreign Affairs on behalf of the family member of the refugee

  • If the family member lives in a country where there is an Irish Embassy or Consulate, then they will be required to submit the visa application themselves directly to the Embassy

  • The application is then sent to the Minister for Justice. In practice, it is the Immigration Division of the Department of Justice

  • The Immigration Division sends the application to the Refugee Commissioner

  • The Commissioner conducts an investigation into the family reunification application and uses a questionnaire and supporting documentation to do so

  • The Commissioner can refer the case to the UNHCR for consideration on the issue of family dependents

  • The Commissioner sends the case back to the Immigration Division

  • The Minister for Justice then decides whether to grant family reunification

  • If the recommendation is positive then Department of Foreign Affairs will be informed and a visa will be issued

  • If the recommendation is negative, the decision can be appealed to the Minister for Justice

  • The whole process can take between four months and a year

The Minister for Justice proposes to follow the policy of Section 18 also in respect of family reunification in the case of persons granted leave to remain, having been in the asylum process and who will be living in the State long term. 

8.2 Statistics

From 1995 to December 2000, 217[26] people have been permitted to enter Ireland on family reunification grounds.

8.3 Social and economic rights

Section 18(3) (a) of the Refugee Act (1996) as amended states that “the person shall be entitled to the rights and privileges specified in Section 3 for such period as the refugee is entitled to remain in the State”. Therefore, persons who have been granted entry into Ireland on family reunification grounds have the same rights as a refugee.

8.4 Documentation 

The individual will have a letter granting them family reunification with their family member and on this basis they will be given a Residence Permit and a Travel Document.


9. Marriage to Irish and EU citizens

9.1 Definition

Irish citizens and other EU citizens working in the State have the right to have a married[27] partner live with them even if they are a non-EEA national. However, it must be stated that the rights that pertain to each differ.

We learned in Section 2 that the primary beneficiaries of Community law are EU citizens who have moved to another Member State to work. Moreover, we learned that these individuals have the right to have their partner and dependent family members reside with them in that Member State.  As a result of case law,[28] it was ruled that partners of EU citizens who have moved to another Member State to work, come directly within the scope of EU community law, and indeed, should be granted all the same rights as their EU partner. This means that these categories of persons are the most privileged beneficiaries of Community law after EU citizens themselves. Their rights are referred to as ‘derived rights’ – as they are derived from their partner.

The situation for partners of Irish citizens is somewhat different. They do not come within the scope of Community law because their partner has not gone to another Member State to work i.e. they need to activate the movement clause if they want to enjoy Community law rights. There are only two ways to overcome this:

  1. If the Irish citizen married their partner in another Member State, was working there and then moved back to Ireland to work Because they have activated the movement clause, they come within the scope of Community law.
  1. If the Irish citizen goes over to another Member State to work with their married partner, they activate the Community law in that other country. Furthermore, if they return to Ireland, their partner would still be deemed to be a privileged beneficiary of Community law and would have the same rights as their partner. Unfortunately it is unclear at this time[29] how much time the couple would need to spend in another Member State for the non-EEA partner to benefit from Community law.

Non-EEA partners’ married to Irish citizens who have not activated the movement clause are referred to by Hailbronner (2000) and Barrett (2000) as ‘unprivileged’. However, the latter remarks that they may enjoy extensive rights under the domestic law of a particular Member State. In Ireland, there is no domestic law governing the situation of non-EEA partners of Irish citizens. However, Article 41 on the Family states the following:

(1) The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

(2) The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Therefore, the State recognising the fundamental importance of the family and should confer all the same rights of the Irish citizen on to their non-EEA partner. Moreover, in contrast to EC law, the Irish citizen does not have to be working in order for their partner to be granted residency.

In all cases, the Department of Justice may interview the couple in question before they grant residency. They may seek supplementary documentation, in the form of Marriage Certificates, leases, bills and so on, to see if the couple are in a relationship together.

9.2 Statistics

Type of permission granted

1999

2000

Persons who married an Irish nationals

 101

  95

Persons who married an EU nationals

  83

  28

Total

184

123

Figure 9: Current or former asylum seekers who have been granted residency on the basis of marriage to an Irish or EU national
Source: Department of Justice, Equality and Law Reform

9.3 Social and economic rights

As stated above, non-EEA partners married to EU nationals who have activated the movement clause have all the same rights as their partner. Therefore, they have the right to seek and take up employment, to establish a business, to access training initiatives such as FAS, to access medical care and go on the list for local authority housing. Furthermore, provided that they have satisfied certain residency requirements, they have the right to access third level institutions on the same basis as a EU national i.e. they should be charged EU fees.

Married partners of Irish nationals who have not activated the movement clause have the right to seek and enter employment. Up until recently, they were required to obtain a work permit[30] and to establish a business. Moreover, they can access training initiatives such as FAS, free medical care and go on the list for local authority housing. However, they are not treated as an EU national in regard to third level education and the right to travel. Both categories of individuals do not have the same freedom of movement as EU nationals and are required to obtain visas to travel if the country they are travelling to require it.

Both groupings of individuals can lose these rights if they divorce their partner. However, separated spouses retain their right to reside.

9.4 Documentation

The documentation a non-EEA national married to an Irish or EU national will have will differ depending on gender. For example, the non-EEA husband of an Irish or EU citizen will be given a Residence Permit on the basis of his marriage to that person. However, the non-EEA wife will not be given a Residence Permit. Instead she will have a stamp in her passport. This differentiation in treatment is due to the fact that the Department of Justice consider wives not to be independent of their husbands.

In addition, these persons should have a birth certificate and a passport from their country of origin.


10. Business Permit

10.1 Definition

Anyone can apply for a business permit. Individuals and companies that are not from a European Agreement country have to invest a minimum sum of £300,000. This condition does not apply to nationals and companies from countries, which have signed Association Agreements with the European Community. They include: the Baltic States, Bulgaria, the Czech Republic, Hungary, Poland, Slovak Republics, Slovenia and Romania.

The association agreements came about following the fall of the Berlin Wall when the European Community took steps to strengthen their relationship with the Central and Eastern Europe countries (CEEC). The intention was to create association agreements “of third generation” providing a context for aid and assistance to the CEEC and, in the longer term, integration into the Community.[31] The agreements contain articles relating to the exercise of a right of establishment by companies and nationals from each of the Europe Agreement countries. The agreements give them access to and residence on the territory of the Union for self-employed and those seeking to establish themselves as self-employed through a company or as key personnel of a company or firm based in a Europe Agreement country.[32]

10.2 Statistics

Year

Approval

Refusal

1998

121

5

1999

119

6

2000[33]

88

2

Figure 10: No. of persons granted and refused business permission 1998-2000
Source: Department of Justice, Equality and Law Reform.

Please see Appendix 1 for a breakdown by nationality.

10.3 Social and economic rights

Individuals with Business Permits have the right to reside in the State. They only have the right to establish and carry out a business. They do not have the right to medical and social welfare entitlements. Furthermore, they do not have the right to free education.[34]

10.4 Documentation

They will have a Business Permit issued from the Department of Justice and a Residence Permit. 


11. Work Permit

11.1Definition                                                                                        

A work permit is required by an employer to take on a non-EEA national. The Work Permit Section in the Department of Enterprise, Trade and Employment examines applications from employers and issues permits where appropriate. The fees for a work permit ranges from £25.00 to £125.00 depending on the duration of a permit.

Given that it is pertinent for the Irish Government to ensure that employment is available for Irish and other EEA nationals, employers who apply for work permits are generally required to establish that it has not been possible, in spite of reasonable efforts[35] being made to fill the vacancy with an Irish or other person for whom a work permit is not required. A permit is granted when the employer has no alternative but to employ a non-EEA national.[36]

There are special arrangements for individuals with special skills i.e. doctors, entertainers, professional sportspersons and participants in exchange programmes recognised by the Minister for Enterprise, Trade and Employment. Moreover, there are special conditions for international companies who wish for one of their employees to spend a certain amount of time in Ireland to work for them.

11.2 Statistics

Work permits issued - 2000

Nationality

New Permits

Renewals

Group

Issued

Refused

Australia

653

115

768

15

Canada

726

59

785

11

Czech Republic

902

51

953

7

Latvia

2086

80

2166

31

Lithuania

835

14

849

8

Malaysia

684

93

777

9

Philippines

908

83

991

22

Poland

810

95

905

5

Russian Federation

695

126

821

9

USA

818

245

1063

20

Group Permits

301

301

Other

6317

1310

7627

225

Total

15434

2271

18006

362


Work permits issued -  1999

Nationality

New Permits

Renewals

Group

Issued

Refused

Australia

271

76

347

28

Brazil

144

29

164

11

India

244

146

390

10

Latvia

254

9

263

16

New Zealand

176

47

223

20

Pakistan

158

96

254

7

Poland

156

37

193

3

South Africa

291

57

348

12

Switzerland

164

49

213

4

USA

593

298

891

32

Group Permits

269

269

Other

1874

812

2695

135

Total

4325

1656

6250

278

Work permits issued – 1998

Nationality

New Permits

Renewals

Group

Issued

Refused

Australia

222

90

312

15

Canada

147

72

219

2

Indonesia

322

124

446

2

Jordan

107

141

248

9

Malaysia

131

69

200

7

New Zealand

128

38

166

14

Pakistan

117

107

224

12

South Africa

124

54

178

9

Switzerland

123

49

172

2

USA

984

441

1425

26

Group Permits

239

Other

1185

701

2125

81

Total

3590

1886

239

3590

179

 

Work permits  issued – 1997

Nationality

New Permits

Renewals

Group

Issued

Refused

Australia

139

80

219

22

Canada

138

55

193

9

Hong Kong

55

87

142

18

Indonesia

183

85

268

6

Japan

103

148

251

7

Malaysia

107

96

203

14

New Zealand

56

25

81

23

Pakistan

108

93

201

10

Philippines

49

25

74

6

USA

858

368

1226

28

Group

259

Other

872

555

1686

67

Total

2668

1617

259

4544

210

Figure 11: No. of work permits issued 1997-2000
Source: Department of Enterprise Trade and Employment

11.3 Social and economic rights

Work Permit holders have the right to enter employment and reside in the State. Nonetheless, they do not have the right to free medical care and social welfare entitlements. Furthermore, they do not have the right to free education.

11.4 Documentation

Individuals will have a Work Permit from the Department of Enterprise, Trade and Employment on the basis of which they will be issued with a Residence Permit.


12. Work visas & work authorisation

12.1 Definition

In 2000, a working visa and work authorisation[37] scheme was introduced to facilitate the recruitment of suitably qualified people from non-EEA countries for designated sectors or the employment market where skill shortages are acute.

Persons with job offers in Ireland can obtain immigration and employment clearance from the Irish Embassies and Consulates. Unlike work permits, these visas allow the individual to work in any firm or organisation that would be considered an area where there are employment shortages. These designated areas include:

  • information and computing technologies

  • architecture

  • construction engineering

  • quantity surveying

  • building surveying

  • town planning

  • nursing

These visas and authorisations are usually granted for a period of two years by the Irish Embassy or Consulate and can be renewed at the end of that period.

12.2 Statistics

Work Authorisations

396

Work Visas

991

Top five countries
Top five countries
South Africa
184
Philippines
516
Australia
60
India
191
USA
39
Russia
76
Canada
30
Slovakia
38
New Zealand
22
Yugoslavia
37

Figure 12: Work Authorisations and Working Visas – June – December 2000
Source: Dept. of Trade, Enterprise and Employment

12.3 Social and economic rights

Work visas or work authorisation allows a person to enter employment and reside in the State. They also have the right to travel if a re-entry visa is obtained before a person leaves Ireland. However, they do not have the right to free medical care and social welfare entitlements. Furthermore, they do not have the right to free education.

One positive aspect of this scheme is that holders are permitted to bring dependents into the State to reside with them provided that they can financially maintain them. Dependent children under the age of 18 are entitled to free primary and secondary education as explained in Section 19.

12.4 Documentation

Individuals will have a visa or work authorisation stamp in their passport and a Residence Permit.


13. Student Visa

13.1 Definition

Non-EEA nationals can come and study in Ireland on a study visa so long as they fulfil the following conditions: provide their immigration history, a valid passport, evidence of their course, evidence of fees paid in full, evidence of private medical insurance and evidence of self-sufficiency.

It is a primary condition of entry into the State that they do not violate the conditions of their visa. Indeed, the Minister for Justice can deport them if they do.

In recent times, the Garda National Immigration Bureau has requested proof in the form of attendance records from schools and colleges that the student has attended class.   

13.2 Statistics

The Immigration Division of the Department of Justice informed me[38]that they do not keep a record of the number of student visas that are issued.

13.3 Social and economic rights

Up until recently, individuals with student visas were not permitted to seek and take up employment (even part-time). The only exceptions to this rule were students from the USA, Canada, Australia and New Zealand who were in the State on reciprocal schemes (i.e. J1 Scheme). However, non-EEA students are now permitted to work while they study here in Ireland.

Non-EEA students do not have the right to any state funded education, medical services or social welfare.

13.4 Documentation

There should be a valid visa stamp in the student’s passport – C-Type for persons who are staying less than 90 days and D –Type for visas that are for a longer period.

Students will also have a Residence Permit.


14. Tourist Visa

14.1 Definition

Appendix 2 of this document includes a list of countries whose nationals do not have to apply for a tourist visa. Nationals from these countries are permitted to travel into Ireland and stay for up to three months. They can have their stay extended by the Garda National Immigration Bureau.

For any other country not on the list, their citizens must apply to the nearest Irish Embassy or Consulate for a visa. The application is sent by the Department of Foreign Affairs to the Visa Section in the Department of Justice in Dublin to be decided upon in exceptional circumstances. If the visa is granted, it is issued by the Department of Foreign Affairs through the Embassy.

In order to be granted a visa, the individual must prove that they can maintain themselves and that they will not overstay the conditions on their visa.

14.2 Social and economic rights

Tourists only have the right to stay so long as their visa is valid. Persons with a tourist visa only do not have the right to study, to work, to social welfare and to free medical care.

14.3 Documentation

Individuals with tourist visas will have it stamped in their passport.  A person coming from a country where a tourist visa is not required may have a stamp in their passport stating the date they entered the State and the date until which they are permitted to stay (usually one month initially).


15. Naturalised Irish Citizens

15.1 Definition 

An applicant for naturalisation has to fulfil certain statutory conditions including having a total of five years residence in the State in the nine year period preceding the date of the application, the last years being a period of continuous residence.

Citizenship is always granted at the discretion of the Minister for Justice, and therefore, he has the power to dispense with any of the conditions outlined above. Furthermore, Convention refugees can apply for naturalisation three years since their application for refugee status. 

15.2 Statistics

Year

No. of certificates issued

2000

140

1999

416

1998

352

1997

294

Figure 13: No. of persons naturalised 1997-2000
Source: Department of Justice, Equality and Law Reform

15.3 Social and economic rights

As a naturalised Irish Citizen, will have all the same rights as individuals who have been Irish citizens since birth and as outlined in the Constitution.

15.4 Documentation

Naturalised Irish citizens will have an Irish passport.


16. Post-Nuptial Citizenship

16.1 Definition

A non-national married to a person who is an Irish citizen (otherwise than by naturalisation, honorary citizenship or post-nuptial citizenship) may accept Irish citizenship as post-nuptial citizenship by lodging a declaration not earlier than three years from the date of the marriage.

16.2 Statistics

Year

No. of certificates issued

2000

   987

1999

1,017

1998

1,222

1997

  984

Figure 14: Number of persons granted post-nuptial citizenship 1997-2000
Source: Dept. of Justice, Equality & Law Reform

16.3 Social and education rights

Once an individual is granted post-nuptial citizenship they have all the same rights as any other Irish national as provided for in the Constitution.

16.4 Documentation 

Persons granted post-nuptial citizenship would have an Irish passport.


17. Persons who have lodged applications for leave to remain and are still waiting

17.1 Definition

Under Section 3 of the Immigration Act 1999, any individual whom the Minister for Justice proposes to deport has the right to submit reasons why they should be allowed remain in the State. These reasons include:

(a) The age of the person;

(b) Duration of residence in the State;

(c) Family and domestic circumstances;

(d) The nature of the person’s connection with the State;

(e) Employment record;

(f) Employment prospects;

(g) Character and conduct of the person both within and outside the State;

(h) Humanitarian considerations;

(i) Representations duly made or on behalf of the person;

(j) The common good;

(k) Considerations of national security and public policy.

Persons who fall into this category can include failed asylum seekers or persons whom for some reason or another have had their residency or immigration status withdrawn from them, or to whom a residence permits was not granted.

According to the Department of Justice many of these applications will not be successful and these individuals could face deportation.

It must be noted that the Minister for Justice cannot deport naturalised Irish citizens to a third country unless citizenship has been revoked by the High Court.

17.2 Statistics

According to the Repatriation Section of the Department of Justice,[39] 1,683 persons have lodged representations in relation to their proposed deportation and decisions have been taken in relation to 369 of these people to deport them. This leaves an outstanding number of 1,314 where decisions have yet to be made.

17.3 Social and economic rights

Persons with the right to work before their asylum application was rejected or residency was withdrawn may continue to work. However, all others in this category are not allowed work, carry out a trade or establish a business. They do have the right to welfare, to free medical care and accommodation. However, they have no right to free education. .

17.4 Documentation 

Persons in this category usually continue to hold their Asylum Card (or now TRC) until its expiry date, after that they are not issued with an identity card. However, the Immigration Division has informed me that this is currently under review.


18. Complementary Protection

18.1 Definition 

Ireland is a signatory to many other international human rights conventions, namely the European Convention on Human Rights (ECHR) 1950 and the International Covenant on Civil and Political Rights (ICCPR) 1966. The Irish Government is currently in the process of drafting legislation to implement the European Convention on Human Rights (1950) and the Convention Against Torture (1984).

Article 3 of the ECHR states that “no one should be exposed to inhumane and degrading treatment” and this has been used to prevent the forcible removal of individuals to a third country.[40] What is interesting to note about this form of protection is that there is no requirement that for the individual to be persecuted for a ‘Convention reason’. There must only be a risk that they experience ill-treatment regardless of the reason for it. Indeed, the scope of the Convention also applies to ‘everyone’ within the State.

Throughout Europe many lawyers have used this and other human rights instruments (when the Geneva Convention failed or was not applicable) to prevent the forcible removal of non-nationals to a third state. Indeed, there are a significant number of people that have remained in France, Germany and Sweden on these grounds. It is certainly conceivable that Irish lawyers will follow suit in the future and we may have individuals in the State in this category.

18.2 Social and economic rights

The Convention is not a status-granting mechanism. Even though it prohibits the forcible return of non-nationals to a third country it does not state what status they should be granted. Therefore, it is recommended that the Irish Government include the social and economic rights of these individuals in the forthcoming Immigration and Residence Bill, and also consider them as a separate category where rights are provided when devising any social and economic policy. 


19. Children

19.1 Definition

All children under the age of 18 are considered equal within the State. This is ensured by the Convention on the Rights of the Child (CRC). For example, Article 2(1) of the CRC states that:

State Parties shall respect and ensure the rights set forth in the present Convention to each child their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parents or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status

Therefore, the Government is legally bound to treat all children within the State equally irrespective of their nationality or legal status.

19.2 Social and economic rights

All children within the state have the same social and economic rights and there should be no differentiation in treatment. Therefore, they have the right to access any educational establishment, initiative or service, which is available to any Irish child. In addition, the Department of Education and Science have issued new guidelines for the provision of non-English speaking pupils in primary schools. The new initiative ensures that:

· Primary schools which have fourteen or more non-national pupils with significant English language deficits will be automatically entitled to an additional temporary teacher for a period of two years.

· Schools with 28 or more such pupils will be entitled to two temporary teachers. Where two schools operate on one campus and have fourteen or more such pupils will be entitled to an additional temporary teacher on a shared basis.

· Schools eligible for additional teacher(s) will also receive a once off grant of £500.00.

· Primary schools in which between three thirteen (inclusive) non-English speaking non-National pupils are enrolled will receive grant assistance.

· Schools with between 3 and 8 such pupils will receive grant assistance in the amount of £5,000 while schools with between 9 and 13 will receive grant assistance in the amount of £7,500.

· This grant aid is intended to enable schools to take appropriate measures to improve the standard of English of non-national pupils with significant English language deficits. Schools with fewer such pupils would be expected to provide for the educational provisions of those pupils from their existing resources.

19.3 Documentation

EU or EEA nationals would have a birth certificate and a passport or be included on their parents or legal guardians passport.

Non-EEA children legally living[41] in the State are not issued with a Residence Permit until they turn 16. However, up until that point they would be registered on their parents or legal guardians file or Travel Document. In addition, they can issued with a Travel Document if they are required to travel on their own for school trips and so on.

Asylum seeking children will be registered on their parents or legal guardians file.


20. Separated Children/Unaccompanied Minors

20.1 Definition

The Separated Children in Europe Programme’s Statement of Good Practice (1999), Section 2.1 states that:

Separated children and young people are children under 18 years of age who are outside their country of origin and separated from both parents, or their legal/customary primary caregiver…..Separated children may be seeking asylum because of fear of persecution or lack of protection due to human rights violations, armed conflict or disturbances in their own country. They may be the victims of trafficking for sexual or other exploitation, or they may have travelled to Europe to escape conditions of serious deprivation

They arrive here seeking asylum and Section 8 (5) of the Refugee Act 1996 makes special provision for them. 5(a) states that:

Where it appears to an immigration officer that a child under the age of 18 years has arrived at the frontiers of the State is not in the custody of any person, the immigration officer shall, as soon as practicable, so inform the health board in whose functional area the place of arrival is situate thereupon the provisions of the Child Care Act, 1991, shall apply in relation to the Child.

Moreover, Article 4(1) of the Child Care Act declares that:

Where it appears to a health board that a child who resides or is found in its area requires care or protection that he is unlikely to receive unless he is taken in to care, it shall by the duty of the health board to take him into its care under this section.

Hence, separated children are under the care of the Health Boards. Furthermore, 5(b) of the Refugee Act 1996 enables a health board official to make an application for refugee status on behalf of a child and to pay any costs that may be incurred.

As stated previously, the Irish Government is bound by the provisions as outlined in the CRC [see 19(a)]. In addition, Article 22(1) states that:

State Parties shall take appropriate measures to ensure that a child who is seeking refugees status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment or applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

20.2 Statistics

See appendix 3 and 4 for the number of separated children in Ireland and breakdown according to gender, age and nationality.

20.3 Social and economic rights

In 2000, the Northern Area Health Board established an Unaccompanied Minors Unit in Baggott Street Hospital, in Dublin 4 to assist separated children. It consists of one team leader, three social workers and three project workers. They provide assistance to newly arrived separated children and place them in emergency accommodation as described in 5(c). The Unit has informed me that they have tried to place the majority of them in hostels or B&B’s together. In some cases they may be forced to share rooms with adults. Furthermore, they may have no access to study rooms or facilities. 

The Health Board have recognised how inadequate this form of housing is for separated children and are funding Clann Housing Association[42] to secure accommodation and open up a centre for separated children. Clann Housing did identify premises for this purpose recently. Unfortunately, local opposition in its vicinity resulted in the plan being abandoned. They are now looking elsewhere but are finding the task to be extremely difficult in light of the current housing crisis that has besieged Dublin.

Separated children are not regionally relocated outside Dublin under the current direct provision scheme. They are supported through Supplementary Welfare Assistance payments as discussed in 5(c) above.

The service which is offered to separated children from the Health Board is quite limited due to the huge numbers. They tend to focus on the most vulnerable individuals with many needs and are currently unable to follow-up school attendance and cater for to their social needs at this point. The Unaccompanied Minors Unit refers individuals that may be experiencing from post-traumatic stress syndrome and other psychological disorders to specialists in St. Brendan’s Hospital.

As stated in 19(a) and (b) all children within the state should be treated equally. Therefore, separated children have the right to attend school and any other initiative provided for Irish children. On this basis, some separated children have entered post-leaving certificate courses. Furthermore, it is clear from preliminary research that the CDVEC and County Dublin VEC will have to develop special initiatives to deal with the specific needs of separated children working together with the Health Board.

Separated children can receive full Supplementary Welfare Assistance payments depending on their age and circumstances and exception needs payments from the Health Board. However, the Health Board will only continue to pay and support a separated child if they are in primary and post primary education. It means in effect that, separated children are unable to attend post leaving certificate courses unless they have their own financial resources.

20.4 Documentation

See 5(d) of this document.


Conclusion

In conclusion, most of the procedures outlined above have been developed on an ad hoc basis in the absence of any statutory instruments or in response to international, Community law or case law. However, this will certainly change within the next year or two. The Department of Justice is currently drafting the Immigration and Residence Bill and it could be published by the end of the year. It is intended that the new Bill will be comprehensive and it will include general principles for the operation of immigration procedures in Ireland. In addition, it will set out measures for visa applications, entry into the State, applications for residence permits and perhaps even deportation. Indeed, it will also outline the social and economic rights for individuals with different forms of residency, many of which have been described and explained above. Finally, the Bill could also include articles around the establishment of a new Immigration Agency.

The Minister for Justice has organised a consultation procedure for the framing of this Bill and many submissions have been made. This is a crucial time for the rights and well being of non-nationals who live or will live in Ireland, and in truth, for the greater public good. It is opportunity to ensure that the social and economic rights of the various groups mentioned above are explicitly provided for. Moreover, this is a chance for the Irish government to legislate for individuals who are currently being adversely affected by current administrative procedures i.e. parents of Irish born children and older siblings of the Irish born child in regard to education at third level, and persons married to Irish citizens who do not come into the scope of European Community law. We find ourselves in interesting times, where we have the opportunity to develop a progressive, humane, fair and just statutory instrument to govern the legal and social condition of immigrants in Ireland.


Suggested reading

Most of the literature included in this list is written from a legal perspective. Hailbronner (2000) is particularly useful for an up to date and complete overview of immigration and asylum law in Europe. The website of the Irish Centre for Migration Studies (ICMS) is also a valuable resource - http://migration.ucc.ie

Asylum

  • Amnesty International (2000) Asylum Law and Policy in Ireland, Amnesty International: Dublin.

  • Egan, Suzanne & Costello, Kevin (1999) Refugee Law Comparative Study, Department of Justice, Equality & Law Reform, Government Publications.

  • Irish Refugee Council (2000) Asylum in Ireland: A Report on the Fairness and Sustainability of Asylum Determinations at First Instance, available from the Irish Refugee Council.

  • Irish Refugee Council (2000) Separated Children: Seeking Asylum in Ireland: A Report on Legal and Social Conditions, available from the Irish Refugee Council.

  • Justice, Equality & Law Reform (Dept. of) (2000) Information Leaflet for applicants for refugee status in Ireland, Department of Justice, Equality and Law Reform.

Immigration

  • Barrett, Gavin (2000) “The Rights of Third Country Family Members under European Community Law”, available from the Irish Centre for European Law, Trinity College Dublin.

  • Dent, John A. (1998) Research Paper on the Social and Economic Rights of Non-nationals in Europe, commissioned by the European Council on Refugees and Exiles (ECRE).

  • Hailbronner, Kay. (1999) Immigration and Asylum Law and Policy of the European Union, Kluwer Law International.

  • Irish Centre for European Law (1999) The Free movement of Workers within the European Union (Ed. by Niamh Hyland), available from the Irish Centre for European Law, TCD.


Appendices

Appendix 1: Country of origin breakdown of persons given business permission 1998-2000

Nationality

1998

1999

2000

Algeria

3

1

3

Armenia

-

1

-

Australia

4

1

6

Bangladesh

1

-

-

Bosnia

1

-

-

Canada

2

5

5

China

6

2

1

Colombia

-

1

-

Cuba Verde

1

-

-

Czech Republic

-

-

2

Egypt

1

1

-

Hong Kong

21

19

6

Hungary

-

1

-

India

11

6

5

Iraq

1

-

1

Iran

2

3

1

Israel

-

1

-

Japan

5

5

3

Jordan

1

2

1

Lebanon

2

1

2

Libya

-

2

-

Kenya

-

1

2

Macedonia

1

-

-

Malaysia

6

5

-

Mexico

-

-

1

New Zealand

1

-

1

Nigeria

5

1

2

Palestine

1

-

-

Pakistan

4

8

6

Poland

4

2

5

Romania

1

1

1

Russia

1

6

6

Sierra Leone

1

-

1

Slovak Republic

-

1

2

South Africa

2

2

3

Sri Lanka

-

-

1

Switzerland

3

8

5

Tanzania

1

-

1

Turkey

3

1

2

Ukraine

3

-

-

USA

21

27

22

Source: Department of Justice, Equality and Law Reform


Appendix 2: List of countries whose passport holders do not require visas to enter Ireland

LIST OF COUNTRIES WHOSE PASSPORT HOLDERS DO NOT REQUIRE VISAS TO ENTER IRELAND: 

ANDORRA
ANTIGUA and BARBUDA
ARGENTINA
AUSTRALIA
AUSTRIA
BAHAMAS
BARBADOS
BELGIUM
BELIZE
BOLIVIA
BOTSWANA
BRAZIL
BRUNEI
CANADA
CHILE
COSTA RICA
CROATIA
CYPRUS
CZECH REPUBLIC
DENMARK
DOMINICA
EL SALVADOR
ESTONIA
FIJI
FINLAND
FRANCE
GERMANY
GREECE
GRENADA

GUATEMALA
GUYANA
HONDURAS
HONG KONG (SAR)
HUNGARY
ICELAND
ISRAEL
ITALY
JAMAICA
JAPAN

KIRIBATI
KOREA (REP OF SOUTH)
LATVIA
LESOTHO
LIECHTENSTEIN
LITHUANIA
LUXEMBOURG
MALAWI
MALAYSIA
MALTA

MAURITIUS
MEXICO
MONACO
NAURU
NETHERLANDS
NEW ZEALAND
NICARAGUA

MALDIVES

 

NORWAY
PANAMA
PARAGUAY
POLAND
PORTUGAL

SAINT KITTS & NEVIS
SAINT LUCIA
SAINT VINCENT & THE GRENADINES

SAN MARINO

SEYCHELLES
SINGAPORE
SLOVENIA

SOLOMON ISLANDS
SOUTH AFRICA
SPAIN
SWAZILAND
SWEDEN
SWITZERLAND
TONGA
TRINIDAD & TOBAGO

TUVALA
U.S.A.
UK & COLONIES
URUGUAY

VANUATA
VATICAN CITY
VENEZUELA
WESTERN SAMOA
ZIMBABWE

BRITISH DEPENDENT TERRITORIES (COLONIES)
Anguilla
Bermuda
British Antarctic Territory (South Georgia, South Sandwich Islands)
British Indian Ocean Territory (Chagos Archipelago, Peros Banos, Diego Garcia, Danger Island)
Cayman Islands
Falkland Islands and Dependencies
Gibraltar
Montserrat
Pitcairn (Henderson, Ducie and Oneno Islands)
St. Helena and Dependencies (Ascension Island, Tristan Da Cunha)
The Sovereign Base Areas of Akrotiri and Dhekelia
Turks and Caicos Island
British Virgin Islands


TRANSIT VISAS ARE REQUIRED BY CITIZENS OF THE FOLLOWING:
- Afghanistan
- Albania
- Bulgaria
- Cuba
- Democratic Republic of Congo
- Ethiopia
- Eritrea
- Federal Republic of Yugoslavia (Serbia and Montenegro)
- Ghana
- Iran
- Iraq
- Lebanon
- Moldova
- Nigeria
- Romania
- Somalia
- Sri Lanka


 

HONG KONG SAR
A PERSON IN POSSESSION OF A HONG KONG CERTIFICATE OF IDENTITY REQUIRES AN ENTRY VISA FOR THE STATE

PERSONS WHO ARE HOLDERS OF A BRITISH HONG KONG PASSPORT WHO HAVE A RIGHT OF ABODE IN GREAT BRITAIN DO NOT REQUIRE ENTRY VISAS

PERSONS WHO ARE HOLDERS OF A BRITISH HONG KONG PASSPORT WHO HAVE A RIGHT OF ABODE IN HONG KONG ONLY DO NOT REQUIRE ENTRY VISAS BUT THEY ARE SUBJECT TO FULL FOREIGN NATIONAL CONTROLS IN RESPECT OF REGISTRATION, PERMISSION TO REMAIN, WORK PERMITS ET CETERA

Source: Department of Foreign Affairs


Appendix 3: No. of separated children in Ireland 2000 (application by month) -  gender, age and nationality

Source: Northern Area Health Board

Month

Gender

Age (Years)

Total

M

F

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

Un 1

Jan

9

6

3

6

2

1

Feb

11

8

3

10

Mar

21

18

3

13

2

3

1

1

Apr

11

7

4

6

2

2

May

37

26

11

17

10

1

4

2

1

Jun

26

16

10

11

5

4

2

1

1

1

1

Jul

26

19

7

13

9

2

1

1

Aug

37

24

13

15

10

6

2

1

1

1

.

1

Sep

71

40

31

32

19

7

4

3

1

4

1

Oct

96

60

36

39

22

9

6

5

2

3

1

1

2

3

1

1

1

Nov

124

78

46

62

28

6

4

1

4

4

2

3

1

5

1

1

1

1

Dec

36

16

20

20

4

7

1

1

1

2

Year

505

318

187

244

113

46

27

12

9

9

10

6

3

3

3

7

2

2

3

1



Appendix 4: No. of separated children in Ireland 2001 (application by month) - gender, age and nationality

Source: Northern Area Health Board

Month

Gender

Age (Years)

Total

M

F

17

16

15

14

13

12

11

10

9

8

7

6

5

4

3

2

1

Un 1

Jan

120

62

58

39

37

14

5

4

1

2

3

1

1

7

4

3

1

2

1

Feb

97

56

41

49

17

6

4

3

2

4

1

3

2

3

3

Year

217

118

99

88

54

20

9

4

4

2

3

3

5

8

7

5

3

2

1

0

 


Appendix 5: International, European and National instruments quoted

International Instruments

· Geneva Convention relating to the Status of Refuges 1951 and 1967 Protocol.

· UN Convention Against Torture, 1984.

European Instruments

· The European Convention on Human Rights and Fundamental Freedoms, 1950.

· Single European Act, 1986.

· Treaty of the European Union, 1992.

· EEC Regulation No. 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community.

· Agreement on the European Economic Area 1992 and Protocol 1993.

National Instruments

· Belfast Agreement, 1998.

· Child Care Act, 1991.

· Constitution of Ireland, 1937.

· Refugee Act, 1996.

· Illegal Immigrants (Trafficking) Act, 2000.

· Belfast Agreement, 1998.

· Child Care Act, 1991.

· Constitution of Ireland, 1937.

· Refugee Act, 1996.

· Illegal Immigrants (Trafficking) Act, 2000.

· Immigration Act, 1999.

· Nationality and Citizenship Act, 1956.

· Nationality and Citizenship Act, 1986.

· Criminal Justice (United Nations Convention Against Torture) Act, 2000

Guidelines and Recommendations

· Separated Children in Europe Programme (1999) Statement of Good Practice, Save the Children & UNHCR.

· UNHCR (1992) Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR: Geneva.



[1] See Goldstone, 2000 & Keogh, 1998.

[2] See Ward, 1996.

[3] Refugee Agency, December 2000.

[4] Ibid.

[5] See MacLaughlin & Crowley, 1997

[6] See European Council on Refugees and Exiles (ECRE) Country Reports for 1999, published by ECRE.

[7] MacÉinrí, 2001

[8] For a more comprehensive explanation of the dynamics of displacement, please see UNHCR (1997) The State of the World’s Refugees, Oxford University Press.

[9] The census did ask about place of birth but this is not always an accurate indicator of nationality.

[10] Applicants are listed under the year in which they lodged their application not the year in which it was determined.

[11] Refugees are treated as an EU national in regard to third level education i.e. they are charged EU fees and are entitled to apply for maintenance grants once they have satisfied certain residency requirements set out by their local VEC or County Council.

[12] Please refer to Section 8.

[13] The Department of Education and Science set up the Refugee Language Support Unit (RLSU) in March 1999 to co-ordinate the provision of language support for refugees admitted to Ireland as a two-year pilot programme. The RLSU has now changed its name to Integrate Ireland.

[14] Hereinafter referred to as the “Department of Justice”.

[15] Residence Permits are issued to every non-EEA national whom is lawfully residing in the State. It is renewed annually by the Aliens Office and is only valid if the stamp within the Book reflects that the holder has the right to remain in the State.

[16] The Irish Government has agreed to accept a certain number of refugees every year together with other countries from the European Union. They are referred to as “quota refugees”.

[17] The Reception and Integration Agency is an agency within the Department of Justice, Equality and Law Reform. It replaced the Directorate of Asylum Support Services (DASS) which was set up by the Department to co-ordinate the reception of asylum seekers into Ireland.

[18] Hereinafter referred to as the “Minister for Justice”.

[19] The FAS Asylum Seeker Unit was established by the Department of Trade, Enterprise and Employment to assist asylum seekers with the right to work to secure employment. They currently have two units based in Coolmine, Co. Dublin and Tallaght, Dublin 24. 

[20] Children under the age of 18 do have the right to state funded education. They will be dealt with in Section 19 and 20.

[21] Women that are 36 weeks pregnant and over are not regionally relocated and not provided for through direct provision. The Health Board usually accommodates them in Dublin.

[22] Please refer to Section 8. 

[23] Fajujonu v. Minister for Justice, 1987.

[24] There have been a number of cases where fathers have had to have a DNA test.

[25] I have contacted the Department of Justice, Equality and Law Reform and the Department of Education and Science, and I am still waiting for a satisfactory response.

[26] This excludes programme refugee family reunification schemes operated by the Refugee Agency when it was under the aegis of the Department of Foreign Affairs.

[27] It is worth mentioning that individuals who are not married to their Irish or EU partner cannot get residency even if the relationship is long-term. This adversely affects a whole range of people that may for one reason or another choose not to get married or simply cannot i.e. (gay and lesbian couples or persons that are still legally married to someone else). Unmarried couples (both heterosexual and gay and lesbian) need to be legislated for. 

[28] Suriendar Singh ex parte Secretary of State for the Home Department  – For a more detailed discussion of this case, please see Barrett, G. (2000) The Rights of Third Country Family Members under European Community law, available from the Irish Centre for European Law, TCD.

[29] According to Barrett (ibid), the Judge in the Suriendar Singh case did not clarify this in his judgement.

[30] The Department of Justice, Equality and Law Reform issued a communication outlining these new arrangements to the Garda Siochana on the 6th April 1999.

[31] Guild, Elspeth. (1996) A Guide to the Right of Establishment under the Europe Agreements, Baileys Shaw& Gillett in association with ILPA, p. 2.

[32] Ibid.

[33] These statistics include some extensions of initial approvals.

[34] See Section 19 for the situation of children.

[35] For example, by way of advertising the vacancy, seeking applicants from FAS or employment agencies or other such means.

[36] For more detailed information, please see Changes to Work Permit Requirements in Ireland: Information Note, available from the Department of Enterprise, Trade and Employment.

[37] Work authorisation is granted to persons from any country, which does not need an entry visa to enter Ireland – see Appendix 1. Work visas are granted to persons that do require a visa to enter Ireland.

[38] Letter received 16th February 2001 from Immigration Division.

[39] Letter received from Department of Justice, Equality and Law Reform, 16th February 2001

[40] This is due to a landmark ruling by the European Court of Human Rights in Soering v UK.

[41] This is irrespective of which form of immigration status their parent or guardians have.

[42] The establishment of Clann Housing Association Ltd. in June 1998 was promoted by the Refugee Agency. The aim of Clann Housing Association Ltd. is to respond to the housing needs of refugees in Ireland through the provision of secure and affordable housing.