Stephen O’Flynn is the Information and Legal Support Officer with the Immigrant Council of Ireland Independent Law Centre, an organisation that seeks to advocate for the rights of migrants and their families.
Since the Immigrant Council of Ireland (ICI) opened in 2002, queries relating to family reunification have consistently been amongst the highest received every year. As part of comprehensive immigration legislative reform, we have called for the introduction of statutory rights to family reunification for Irish citizens and migrants living in Ireland.
ICI recently assisted a couple, one of whom's residency application was refused on the basis that the Irish national was unable to financially sponsor his partner due to medical incapacity. In 2002, Emmet, an Irish citizen, was residing in Florida when he met Crystal, an American citizen, where they lived together for 12 years. Over the period, Emmet developed serious chronic Crohn's Disease and other medical conditions. These conditions resulted in long periods of severe ill health for Emmet. In early 2014, the couple decided to move permanently to Ireland, allowing Emmet to be closer to his family.
Crystal’s residency application was refused by the Irish Naturalisation and Immigration Service (INIS) on the basis that Emmet was reliant solely on State benefits and could not take up regular work due to his medical condition. ICI provided legal representation to the couple and sought an internal review of the decision by the INIS.
Under The Policy Document on Non EEA Family Reunification published by the INIS in January 2014, in order to apply for family reunification with a non-EEA family member an Irish citizen must demonstrate they comply with financial criteria. Irish nationals are said to be precluded from applying if they “...have been totally or predominantly reliant on benefits from the Irish State for a continuous period in excess of two years immediately prior to the application...”.
Concern was expressed in the months following the publication of the policy as to where this left individuals in receipt of payments, such as disability allowance and invalidity pension. Did individuals with disabilities and long term illnesses have no right to apply for family reunification?
Representations were made regarding the refusal on the basis that Emmet could not support his partner due to his medical incapacity. Arguments concerning the Constitution, the case law of the European Court of Justice regarding dependent EU family members, and Article 8 of the European Convention on Human Rights were submitted. However, perhaps crucially for the couple, the Minister for Justice answered a Dáil Question regarding such family reunification cases on the 9th December 2014:
“In general, the sponsor must be in a position to support such family members by not having been reliant on State benefits from the Irish State for a continuous period in excess of two years immediately prior to the application. Disability allowance payments are excluded from such a requirement. Since it must be assumed that such benefits recognise a lack of capacity to otherwise earn a living, the end result would be that a person on disability benefit could never benefit from family reunification. This would be unfair. Therefore, persons receiving disability benefits are considered eligible sponsors, subject of course to meeting any other necessary requirements.”
This Dáil response was also brought to the attention of the de-facto section of INIS. Following these representations, our client was informed by letter less than a week afterwards that she had received an immigration residency permit to remain as the de-facto partner of an Irish citizen.
While this couple ultimately received a successful result, we continue to receive reports of the policy regarding disability allowance being applied inconsistently, including decisions by overseas visa offices for family reunification visas. It is important that INIS clearly iterates its policy regarding such applications, not only to deciding officers in visa offices and INIS, but to the individuals who are desperate to reside with their loved ones in Ireland. At ICI, we hope that INIS will resolve this matter soon. To date no statement on the official website on the INIS clarifying its position regarding disability allowance, nor has the Policy Document on Non EEA Family Reunification been amended to reflect the position.
For more information on the Immigrant Council of Ireland, please visit www.immigrantcouncil.ie or contact the Information Service on 01-6740200.