Non-EEA nationals who are married to or who are the civil partners of Irish citizens are entitled to be granted a stamp 4 permission to reside in Ireland.  A query which we frequently receive at Sinnott Solicitors is what happens to a person’s immigration status when they separate or divorce from their Irish citizen spouse or civil partner? 

In circumstances where it is quite normal for relationships to break down in everyday life, this is a query which we receive very regularly.  It is important to note that we have seen various approaches by the Irish Naturalisation and Immigration Service (INIS) in how they deal with applications for retention of immigration permission following the break-down of a relationship. As applications are dealt with on a case by case basis, this means that there are often considerable inconsistencies in the manner in which applications to retain immigration permission independently of a spouse or civil partner are dealt with by the INIS.

The Irish Naturalisation and Immigration Service have set out in the Policy Document on Non-EEA Family Reunification December 2016, the procedure to be followed when a non-EEA national separates or divorces from their Irish citizen spouse or civil partner.  

Paragraph 23 of the document deals with Change in Circumstances/Retention of Status and Paragraph 23.2 states as follows:

 “In the event of the death of the sponsor, departure from the state of the sponsor, divorce or annulment of the civil partnership, the family member must notify the Immigration Authorities and apply to INIS for a change of status.  The possibility to apply for a change of status is currently facilitated by INIS on a case by case basis.  The change to status which may be granted to the family member will depend on that family member’s new situation e.g. are they working, studying, dependent on another resident etc. and the circumstances of the change.

The first thing which a person should do once they separate from their spouse or civil partner is to notify the INIS and their registration office immediately. 

This is actually something which many individuals are not aware of, particularly non visa required nationals who are not required to submit written applications to be granted residency as the spouse/civil partner of an Irish national. Such individuals simply obtain their Stamp 4 permission to remain by attending their local registration office with their Irish citizen spouse/partner. 

When a person who has submitted a written application to the INIS receives their approval letter,  the letter will clearly set out the conditions which apply to their temporary permission to remain, and in the event of a change in their circumstances will clearly state as follows:

“ You should note that any change in your circumstances which would affect the accuracy of your registration should be notified to your Registration Officer within 7 days of such change in circumstances”. 

Non-visa required nationals who are granted permission to reside  in the State as the spouse/civil partner of an Irish citizen do not receive any such written notice and are very often unaware of  the steps to be taken following a change of circumstances. This can become a problem for individuals later on when questioned as to why they did not notify the INIS of the change in circumstances at the time.

Information/documentation which should be submitted in support of an application for change of status include documentation related to the  length of time the person has resided in Ireland, immigration history, personal conduct and character, employment, education history, financial circumstances, duration of marriage, children, family members in the State and other relevant matters.

Paragraph 23.4 of the policy document confirms that:

In the event of divorce, dissolution of a civil partnership or legal separation, a general requirement in respect of an application for retention of immigration status, would be for the parties to have been married or in a civil partnership for at least three years beforehand but the last two years at least spent residing in Ireland.”  

The policy document fails to mention situations where a person remains married and separated (albeit not a legal separation) however in our experience such cases are all processed by the INIS on a case by case basis.  It is important to note that where a person remains married to or in a civil partnership with an Irish citizen that they continue to benefit from the protections  and rights clearly set out in the Irish Constitution as spouse or a civil partner of an Irish citizen.

In the event that a person’s application for a change of status or independent immigration permission is refused by the Department of Justice, paragraph 23.6 of the policy document confirms that an individual is entitled to appeal any such decision.  

At Sinnott Solicitors we have seen a number of cases recently where individuals have been denied their right to appeal rendering the refusals open to a legal challenge.  It is important for applicants to be aware of their right of appeal, i.e. that they are entitled to appeal any refusal decision which they receive, any appeal must be considered by a different officer who issued the original decision and where possible one who is more senior than the original decision maker. 

It is extremely important for applicants to be aware of this right to appeal and the requirement that an appeal be considered by a different officer.  Failure to do so on behalf of the INIS is a complete breach of fair procedures and natural justice and we have seen a number of cases at Sinnott’s where appeals have been considered and refused by the same officer, in addition to the right to appeal being denied. We have also seen refusals referring to documentation and information related to other individual applications, and not the application in question which in itself is a gross breach of the Data Protection Acts on behalf of the INIS.  Moreover, we have seen various outcomes on cases with some individuals being granted retention of their immigration permission and others being refused. 

 

The immigration team at Sinnott Solicitors are experts on all Irish immigration matters. If you would like to discuss your application for retention of your immigration permission following the breakdown of your relationship, do not hesitate to contact our office on 014062862 or info@sinnott.ie.