Policy paper on the nondocumented Immigrant scheme 2022

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Policy paper on the nondocumented Immigrant scheme 2022 POLICY PAPER ON THE SCHEME TO REGULARISE LONG-TERM UNDOCUMENTED MIGRANTS IN IRELAND

  1. INTRODUCTION 1.1 The Programme for Government includes a commitment to bring forward proposals for the regularisation of long-term undocumented migrants and their dependents which is intended to: “Create new pathways for long-term undocumented people and their dependents, meeting specified criteria to regularise their status within 18 months of the formation of the Government, bearing in mind EU and Common Travel Area commitments.” 1.2 The European Migrant Network defines the undocumented, also known as irregular migrants, as non-EEA nationals who “owing to irregular entry, breach of a condition of entry or the expiry of their legal basis for entering and residing, lack legal status in a transit or host country”. The undocumented consist of both adults and children. Where a child is born to an undocumented person resident in the State, there is currently no clear pathway for such a child to become regularised unless one or other parent has permission to reside in the State. 1.3 The creation of legal pathways for the undocumented is also known as regularisation, or granting legal status to people who lack it. The focus of the Programme for Government commitment is on people who have a significant period of residence in the State without a residence permission and, therefore, face greater challenges in integrating into society and maintaining labour market mobility.
  2. BACKGROUND 2.1 In February 2017, the Joint Oireachtas Committee on Justice and Equality recommended that the Minister for Justice and Equality should “introduce a time-bound Scheme, with transparent criteria, to regularise the position of undocumented migrants in Ireland”. In August 2020, the Migrant Rights Centre Ireland (MRCI) made a submission to the Minister containing a proposal for a regularisation Scheme for the undocumented. 2.2 No official data exists on the number of undocumented persons in the State. In 2014, the MRCI estimated that there were between 20,000 and 26,000 undocumented migrant 2 adults living and working in Ireland. More recently in 2020, the MRCI estimated that there are some 15,000 to 17,000 undocumented persons in the State, including 2,000 to 3,000 children. This includes those whose residence permissions recently expired as well as those who are resident long-term in the State without an immigration permission. 2.3 In October 2020, a survey of 1,000 undocumented people undertaken by the MRCI indicated that 75.5% have been here for five years or more; 93% are working, and 70% are aged between 24 and 44. This survey also found that the undocumented are employed in a number of sectors: Elderly care in the home (27%); Restaurant and catering (20%); Cleaning and maintenance (17%); Childcare (10%); Construction (5%) and Retail (4%). The main countries of origin identified in that survey were the Philippines, Mongolia, China, Bangladesh, Brazil and Malawi.
  3. OBJECTIVES AND SCOPE OF THE SCHEME 3.1 This time-limited Scheme has been developed to provide residence permission to persons who are living in Ireland, and have been doing so for a long period of time without a valid residence permission in the State, irrespective of how they entered the State initially, and are therefore considered to be “long-term undocumented”. The Scheme is aimed at alleviating the particular challenges faced by those who have been “undocumented” for a long period and who face challenges in integrating into society and maintaining labour market mobility. 3.2 It is not open to individuals who have been “undocumented” for a short period even if they have been resident in the State for a long period. 3.3 Persons whose applications for protection under the International Protection Act are under consideration hold temporary residence certificates and are not, therefore, “undocumented” and are not addressed in this policy document. However, a separate, optional regularisation process to provide a residence permission to certain applicants for International Protection is underway and details will be available at www.ipo.gov.ie 3.4 Persons over 18 years of age who are considered long-term undocumented in accordance with the eligibility requirements at section 4, described as ‘principal applicants’ may apply on their own behalf, and on behalf of eligible family members described at 4 below. 3.5 Subject to the eligibility requirements at section 4 of being resident in the State on an “undocumented “ basis for the requisite period, the Scheme is open to those principal applicants, spouses, civil partners, de facto partners, minor children or eligible children over age 18 years, who are subject to an extant unenforced Deportation Order who are living in the State and those who are in the section 3 process (section 3 of the Immigration Act, 1999) and are living in the State, including those who have been issued with a notice of intention to make a Deportation Order or who have applied under section 3(11) of the 1999 Act to the Minister to have a Deportation Order revoked.

3.6 The reckonable period of continuous undocumented residence for principal applicants is four years. Recognising the best interests of children under 18 years of age in particular and the desirability of regularising their residency status, the reckonable residence period for a principal applicant whose application includes a minor child is reduced to three years. Minor children must have been residing with the principal applicant immediately prior to the publication of this Scheme on 13 January 2022. 3.7 Certain adult children living with the principal applicant who meet the eligibility requirements in section 4, may be included in the family application. This is to allow for administrative convenience and for the adult child’s application to be covered by the family application fee.

  1. ELIGIBILITY REQUIREMENTS 4.1 Principal Applicants The principal applicant for the purposes of this Scheme is the person submitting an individual application on their own behalf, and who may submit an application on behalf of eligible family members. The family unit may comprise a couple i.e. main applicant and their spouse or civil partner or de facto partner with whom they live, and/or include their children who reside with them. The principal applicant must be age 18 years or older. The applications of eligible family members are subsidiary to that of the principal applicant and contingent upon the success of the principal applicant’s application. Eligible family members include:  The spouse, civil partner or de facto partner of the principal applicant who must be at least 18 years of age, living with the principal applicant for two years immediately prior to the 31 January 2022, i.e. the opening date of this Scheme, to continue to be living together at the date of application, and meet the eligibility requirements of this Scheme.  Direct descendants, adopted children or stepchildren of the principal applicant or of his/her spouse, civil partner or de facto partner up to age 18 years. Such children up to age 18 years must be living in the State with the principal applicant as a family unit prior to the publication of this Scheme on 13 January, 2022 and to continue to be living together at the date of application.  Adult children aged 18 – 23 years of the principal applicant or of his/her spouse, civil partner or de facto partner, may be included in the application for the family unit but they must meet the eligibility requirements. Such children must be living in the State with the principal applicant as a family unit for two years prior to the date of 31 January 2022 when the Scheme opens for applications, and to continue to be living together at the date of application. 4  All adult children above 23 years of age must make an application in their own right. However, where such a person requires the close personal care of the principal applicant due to a disability, which renders independent living impossible, such persons may form part of the principal applicant’s application where medical evidence supporting same is included.  In cases where children age 18 years or older are married or in a civil/de facto partnership with another person, they must make an application in their own right and meet the undocumented residence requirement and other eligibility requirements. 4.2 In the case of adoption, an official adoption certificate from the country where the child was adopted must form part of the application. 4.3 Section 4.1 relating to adult children also applies to adult stepchildren. 4.4 Where minor stepchildren are concerned, such children must be living in the State with the principal applicant as a family unit immediately prior to the publication of this Scheme on 13 January 2022 and to have continued living with them at the date of application. Legal documentation attesting that either the principal applicant, or the spouse, civil partner or de facto partner, as appropriate, has sole/joint custody of the child must form part of the application. It should be noted that this Scheme does not include provision for an application to be made in respect of a child cared for by the principal applicant, or by his/her spouse, civil partner or de facto partner by virtue of an informal fostering/caring arrangement. In all cases official documentation establishing custody/guardianship of the child must be provided in line with the requirements set out in this document. 4.5 Consent from the other legal parent/guardian(s) is required in shared/joint custody arrangements. The child’s presence in the State gives no rights to visit or reside in the State to the other parent/guardian(s). 4.6 Proof of family relationship is required for a spouse, civil partner or de facto partner and all eligible children included in the application. See section 6 for details of such documentation. The onus is on the applicant to satisfy the Immigration Service that the familial relationship is as claimed. In certain cases where reasonable doubt exists, the parties may be asked to provide DNA evidence in support of the claimed relationship. Only DNA evidence from a recognised service provider will be accepted and the cost of the DNA test shall be borne by the applicant. There is no obligation to submit to such a request. However, in the event of any such refusal, a negative inference may be drawn which may be taken into account in light of all of the other evidence and documentation submitted. 4.7 De facto partnerships must be continuing and exclusive for the full duration of the qualifying period set out in the third bullet point below and at the date the Scheme opens for applications i.e. 31 January 2022. For the purposes of this Scheme, a person shall be considered a de facto partner, opposite or same sex, of another person only if: 5  There is a mutual commitment to a shared life to the exclusion of all others akin to a marriage or civil partnership in practice though not in law;  The relationship between them is genuine and continuing;  They live together, or do not live separately and apart on a permanent basis, and have been living together for a minimum of two years immediately prior to the date the Scheme opens for applications i.e. 31 January 2022 and continue to live together at date of application; and,  They are not related to each other within a prohibited degree of relationship. Two people are related to each other within a prohibited degree of relationship if they would be prohibited from marrying each other in the State by reason of that relationship. 4.8 A spouse, civil partner, de facto partner of the principal applicant or the adult child of a spouse, civil partner, de facto partner or of the principal applicant, who is residing outside the State prior to the date of 31 January 2022 when this Scheme opens for applications, is not eligible for this Scheme (see residency requirements above). A minor child must be living with the principal applicant immediately prior to 13 January 2022 and at the date of application. This Scheme will not create any new entitlements to family reunification. Those who are successful under this Scheme should refer to the Policy Document on Non- EEA Family Reunification to establish if they are eligible to make a separate application under that policy at a future date. 4.9 For the avoidance of doubt, the following categories of person are not considered ‘principal applicants’ or ‘eligible family members’ under this Scheme for Undocumented Migrants:  Persons who have a current valid permission to reside in Ireland (including permission granted for the purposes of pursuing an application for International Protection, i.e. a temporary residence certificate (TRC)). A separate strand of the one-off Scheme will be open to International Protection Applicants. See www.ipo.gov.ie  Persons who have fallen out of permission but who are “undocumented” for less than the relevant minimum period set out below. 4.10 The requirement for a minimum period of undocumented residency will apply as follows: i. The principal applicant must have resided in the State without a valid residence permission continuously for a minimum of four years immediately prior to the opening 6 date for this Scheme, i.e. 31 January 2022 and to have continued to do so at date of application. ii. For those applications that include a minor child (i.e. under the age of 18 years) the principal applicant must have resided in the State without a valid residence permission continuously for a minimum of three years immediately prior to the opening date for this Scheme. Any minor children included in the application must have been resident in the State and living with the principal applicant immediately prior to 13 January 2022 (the date on which the Scheme is published) and continue to live with them at the date of application. For applications in respect of a family that includes only children aged 18 years of age or older, the principal applicant must have been resident in an undocumented capacity for the four year period immediately prior to the opening date for this Scheme, i.e. 31 January 2022, and to have continued to do so at the date of application. iii. All adult eligible family members other than the principal applicant must have resided with the principal applicant in the State without a valid residence permission continuously for a minimum of two years immediately prior to the opening date for this Scheme i.e. 31 January 2022, and to have continued to do so at the date of application. iv. The principal applicant and any spouse, civil partner, de facto partner and eligible children must provide documentary evidence of continued presence in the State as set out in section 6 below. v. A short period of absence from the State of up to 60 days and the period of any short- stay visitor’s immigration permission granted upon re-entry to the State (up to 90 days) will be disregarded for those who would otherwise meet the relevant undocumented residence requirement set out in paragraphs I, ii, and iii above. Where an applicant’s short-stay visitor’s immigration permission granted upon re-entry to the State has been extended beyond 90 days solely by virtue of the general temporary permissions issued by the Minister as a result of the Covid 19 emergency since March 2020, such extension of this visitor’s immigration permission shall also be disregarded for those who would otherwise meet the relevant undocumented residence requirement set out in paragraphs i, ii, and iii above. Please see example of short-stay visitor’s permission stamps in Appendix 1. 4.16 Eligibility under the Scheme is subject to the good character and conduct of applicants i.e. the principal applicant and each family member. The Immigration Service will take into consideration information from An Garda Síochána and other public authorities regarding any behaviour of a criminal nature considered to be contrary to the common good and/or public policy and may refuse to grant a residence permission to any applicant on that basis. The Scheme, which is based on the executive authority of the Minister, aims to confer a benefit on applicants and does not involve consideration by the Immigration Service of any statutory rights to residence arising in respect of an individual. It is a matter for the 7 Immigration Service to determine whether an applicant satisfies this requirement and all information relevant to the applicant will be considered. While it is recognised that in relation to criminal charges pending against an applicant, the person enjoys, in criminal law, a presumption of innocence until proven guilty beyond a reasonable doubt, it should be noted that the consideration of good character and good conduct in relation to applications under the Scheme is not subject to any presumptions, or the standard or burden of proof, applicable to criminal proceedings. While each case will be considered on its own merits, it is expected that minor convictions will not, of themselves, result in the refusal of an application. All persons in the application process over 16 years of age will be required to undergo Garda vetting. 4.17 The principal applicant and any eligible family members should not pose a threat to the security of the State, or another State, through terrorism or support for terrorist activities, through incitement to hatred, through criminal behaviour, or of violence against one or more persons. 4.18 Any false or misleading documentation or information provided in the application process will result in the application being refused.
  2. Closing Date for Applications The Scheme will operate on an administrative basis under the executive power of the Minister for Justice. It will be open for applications for 6 months only from 31 January 2022 to 31 July
  3. REQUIRED DOCUMENTATION TO APPLY FOR THIS SCHEME All principal applicants must provide evidence of their identity and their residency in the State for either three or four years immediately prior to the opening of the Scheme (whichever is relevant), and all eligible adult family member applicants must provide evidence of their identity and their residency in the State for at least two years immediately prior to the launch of the Scheme. All eligible minor children must provide evidence of their identity and their residence in the State immediately prior to the publication of the Scheme i.e. 13 January 2022. Family unit applications must also provide evidence of the relationship between family members on the application form. 8 Proof of identity The following is the list of identity and other supporting documents, which will be accepted. A copy of at least one of the following documents must be submitted per applicant/family member:  Passport (valid or expired);  Travel Document (valid or expired);  Drivers’ Licence (valid or expired which was issued in Ireland with your photograph on it);  Public Services Card (issued in Ireland, which has your photograph on it);  National identity card (valid or expired) ;  Birth Certificates of children born in the State;  Expired Irish Residence Permit (IRP) card or Garda National Immigration Bureau (GNIB) card;  Expired Temporary Residence Card (TRC) (Former International Protection Applicants card). Note: Expired documents that support a claimed identity will be accepted for making an online application to this Scheme. Successful applicants will be required to have a valid passport, to register the permission at a local immigration office. If an applicant does not have an in-date passport, it is recommended that an application for a new passport from the local Embassy/Consulate is made as soon as possible. Proof of residence Below is the list of residency documents, which will be accepted. An applicant is required to submit documentation for each of the previous three or four years (or two years in the case of eligible adult family members who are not the principal applicant) that each applicant was living undocumented in the State. All eligible minor children must provide evidence of their residence in the State immediately prior to the publication of this Scheme i.e. 13 January 2022 and at date of application.  Previous Irish Residence Permit (IRP) card or GNIB Card  Previous permission letter issued by the Immigration Service (formerly Irish Naturalisation and Immigration Service (INIS)  Social Protection Statements, e.g. evidence of receiving the PUP payment, children’s allowance, etc.  Utility bills (i.e. from electricity/phone/gas/cable television/broadband provider/mobile phone bills)  Registration with the Residential Tenancies Board 9  Employment Detail Summary/P60/P45/P21s or equivalent  Marriage/civil partnership certificates relating to a marriage or civil partnership entered into in Ireland  Evidence that the applicant sat the Junior Certificate and/or Leaving Certificate exams in Ireland  Evidence that the applicant attended University or Third level college in Ireland  A letter from a school principal in Ireland, confirming child’s attendance at a school if it was in the past three years  Letter from doctor/hospital in Ireland  Vaccination passport for children, or COVID-19 vaccination card issued in Ireland  Statements or other correspondence from bank/building society/credit union including e-Statements with activity in the country (Statements from store cards/catalogue companies are not acceptable)  Proof of money transfers between the applicant and a third party, carried out at a money transfer facility in the State e.g. Western union  Correspondence from an insurance company regarding an active policy (home or car insurance policy only). A document that covers more than one person from the family for the required time period will be accepted, e.g. a letter from a school principal which lists all children who attend or a joint bank statement in both applicants’ names. If an applicant has one document that covers more than one year of undocumented residence in the State, e.g. letter from school principal, this will be accepted. Other official correspondence from an Irish state agency e.g. Government departments; HSE; Register of Electors/polling card; CAO; An Garda Síochána; Public / Private hospitals; Residential Tenancies Board (RTB); 10 Secondary school /training agency; NCT Reports or reminders; An Post; TV Licence; National Government Health Screening Programme(s); The above is not an exhaustive list and consideration may be given by the Immigration Service to accepting other forms of verifiable evidence, where appropriate. Note: Letters from friends/neighbours will not be accepted as the only proof of residency in the State. These documents along with other unverifiable material may be submitted as supporting documentation only. As part of the application process, Immigration Service Delivery (ISD) must be able to confirm the identification of all the applicants, who submit an application. Proof of family relationship For adults in a family application we will accept the following documentation  Marriage certificate (issued in the State or abroad)  Civil partnership certificate (issued in the State or abroad). This civil partnership must be recognised under Irish law. In order for an application to be processed as that of a de facto partner in the family application, the following documentation must be submitted to show that the couple have been in a relationship and living together for more than two years, prior to the launch of this Scheme.  Evidence that the couple have been living together for the last two years as per section 4 above and the relationship between them is genuine and continuing (e.g. tenancy agreements, utility bills, bank statements showing both applicants living at the same address)  Evidence that there is a mutual commitment to a shared life to the exclusion of all others akin to a marriage or civil partnership in practice though not in law (e.g. evidence of jointly- owned assets, evidence of shared bank accounts or insurance, evidence of travel, birth certificates of any children of the partnership)  If either person was previously married or in a civil partnership, a decree or other evidence of divorce, dissolution, annulment, or legal separation, or a death certificate as appropriate. Family applications with children Proof of a family relationship is required for a spouse/civil partner or de facto partner and all children included in the application. It is the responsibility of the applicant to provide this documentation to demonstrate compliance with the requirements of the scheme. 11 In certain cases where reasonable doubt exists, an applicant may be asked to provide DNA evidence to prove this relationship. Only DNA evidence from a recognised service provider will be accepted and the applicant will have to pay for this DNA test. There is no obligation to submit a DNA test if requested. If an applicant decides not to submit a DNA test, a negative inference may be drawn, which will be taken into account in the decision-making process. Where an application includes a child under the age of 23, the following must be submitted  Birth certificate, naming at least one of the adults in the family application as the biological parent  In the case of adoption, an official adoption certificate from the country where the child was adopted. In cases where there is a custody arrangement in place, the following documentation is required:  In the case of a sole custody arrangement involving minor children (under the age of 18), legal documentation attesting sole custody of the minor child  In the case of shared/joint custody arrangements involving minor children (under the age of 18) a permission letter from the other parent/guardians(s) is required.
  4. THE UNSUCCESSFUL APPLICANT 7.1 An application may be refused where the applicant fails to establish their eligibility under the terms and conditions of this scheme. Where an application under this Scheme is refused, reasons will be given for that refusal. Reasons for refusal would include (but not be limited to) the following:  An applicant fails to meet the prior undocumented residence requirement  An applicant’s presence in the State is considered to pose a threat to national security  An applicant is not of good character / conduct.  An applicant supplies false and/or misleading documentation or information  An applicant provides Inadequate or inconsistent information or documentation;  An applicant fails to establish the existence, durability or closeness of relationship for family member/s included in the application. 7.2 If an applicant is refused, the Immigration Service will write to the applicant at the address provided in their application, setting out the reasons for refusal, the right of the applicant to appeal the decision and the process for appeal. 7.3 Once an applicant has been deemed unsuccessful, he/she has a right to make an appeal as set out at section 8 below. Applicants who are unsuccessful, including after appeal where such is made, will be referred for further consideration of their case by the Immigration Service in accordance with relevant domestic immigration law and the European Convention on Human Rights. 12
  5. APPEALS PROCESS 8.1 Where an application is refused the applicant may make an appeal to the Immigration Service. The appeal must be made online and must be received by the Immigration Service within 30 working days of the date of the issue of the decision by the Immigration Service. The appeal may be submitted to the Immigration Service by the principal applicant or by a legal representative of the principal applicant. 8.2 The reasons for the appeal should be set out and may be supported by documentary evidence, statements etc. additional to the documents submitted with the earlier application and it is the responsibility of the principal applicant and/or the family member(s) and/or the legal representative to identify and submit whatever documents they deem appropriate in support of the appeal. 8.3 An appeal will be considered by a different officer. The officer determining the appeal may: (i) confirm the original decision, or (ii) grant an immigration permission under this scheme 8.4 The application and any appeal will be considered within the parameters of the scheme outlined.
  6. WHAT RESIDENCE PERMISSION WILL QUALIFYING APPLICANTS RECEIVE? 9.1 Applicants who are successful under this Scheme will be issued with a letter confirming their residence permission (Stamp 4). Conditions attaching to this permission can be found at https://www.irishimmigration.ie/registering-your-immigration-permission/information- on-registering/immigration-permission-stamps/#stamp-categories 9.2 This permission will allow for full access to the labour market for each successful applicant. 9.3 The permission will be granted for an initial period of two years. The permission may be renewed after a period of two years for a further three years provided the conditions attaching to the initial grant of permission continue to be met. All conditions attaching to the immigration permission will be outlined in the grant letter. 9.4 Qualifying applicants may access State services where they meet the qualifying conditions as determined by the relevant Government departments or agencies.

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