Buy Me A CoffeeI am writing this account for the sake of those who follow. As victims of serious negligence by the state bureaucracy, my family and I feel vulnerable, and thus wish to remain anonymous. In any case, revealing my identity will add nothing to what I am about to disclose. If anyone wishes to contact me for support or guidance, please contact the editor of this magazine.
I – The Background
I am an Irish citizen originally from Pakistan. By the time of my citizenship application, I had already been living in Ireland for ten years, at all times on a valid visa. I am married to a Lithuanian national (and EU citizen), and we have a child, who is Irish by birth. We availed of the welfare system for a few years after the recession, when we struggled to find work despite our Irish university educations, but we have both since gained full-time employment.
I entered Ireland on a student visa. A few years later, I met my partner, and we got married. The effect of marrying an EU national in an EU state is that it elevates your legal status in that country. It allowed me to take out a five-year 4EUFam visa, meaning I had a right to remain, live, and work in Ireland.
Fast forward five years, in 2015, I contacted the Irish Naturalisation and Immigration Service (henceforth INIS), asking them what my options were, as I wished to remain in the country permanently. They replied that I had two options. Either, apply for a ten-year Permanent Residence Card (Form EU3), six months before the expiration of my visa, or apply for full citizenship.
In February 2016 my wife applied on my behalf, as is required, for the ten years visa. We expected the application to run smoothly, as we had always lived here in accordance with the Free Movement of Persons Regulation, had no criminal records, an Irish child, and had been consistently resident in the country.
Also, importantly, my wife had also applied for, and received, a Permanent Residence Certificate in 2010 (Form EU2), which provides leave to remain in the state, which can only be obtained after living and working in the country for at least five years.
Once certain conditions are met, this certificate grants that person’s family leave to remain. The free movement of EU citizens and their family members is a fundamental right under EU Law, enshrined in Article 45, and developed by EU secondary legislation and the case law of the European Court of Justice.
Nine months passed, because of a backlog at the INIS, as applications, which were supposed to be processed within six months, were taking much longer. But I hear this is only happening to Pakistani nationals, and a few select others.
In the meantime my five year visa expired, but the INIS sends a letter, which I can take with me to the notorious Burgh Quay, and request a 6 month extension, while my application is being processed. I had already, optimistically, sent my application for citizenship.
II – The Bombshell
In November 2016 we received a letter from the INIS, saying the Minister has decided to refuse my application, for the following reason:
You have not submitted the necessary documents which were requested.
The documents requested were as follows:
For each period of study, copies of the following documents should be supplied:
-Letter from college/course provider including start date and (expected) completion date
-Letter from private medical insurance provider for EU citizen and any dependants
-Evidence of financial resources and corresponding bank statements
For each period of involuntarily unemployment, copies of the following documents should be provided:
-Letter from Department of Social Protection with details of benefit claims
-Letter from previous employer outlining circumstances of redundancy
-P60s for prior 2 years of employment
Therefore your application does not meet the requirements of Regulation 15(2) of the Regulations as you have failed to submit the necessary supporting documentation set out in Schedule 7 of the Regulations.
In order to qualify for permanent residence under Regulation 12(1) of the Regulations, you must reside in the State with the EU citizen in conformity with the Regulations for a continuous period of 5 years. You have submitted the following as evidence of the EU citizen’s activity:
(long list of documents)
This does not satisfy the Minister that the EU citizen has resided in the State while engaged in employment, self-employment, the pursuit of a course of study, involuntary unemployment or the possession of sufficient resources in conformity of Regulation (6)(3) of the Regulations. Therefore, it does not appear you are entitled to permanent residence as a family member in accordance with Regulation 12(1)(b) of the Regulations.
It is now open to you to make representations to the Minister as to why your application should not be refused. Such representations must be made within 15 working days of the date of issue of the letter.
Naively, we assumed there had been a mistake, because we were sure we had submitted all the documents correctly. I had just fifteen days to re-submit all the necessary documentation for the application, without even knowing what exactly was missing in the first place.
In February 2017, after three months, we received a letter from the INIS, stating:
The Minister has examined your application based on the documentation on file.
I am to inform you that the Minister has decided to refuse your application for a permanent residence card under the Regulations. This is for the following reasons:
In order to qualify for permanent residence under Regulation 12(1) of the Regulations, you must reside in the State with the EU citizen in conformity with the Regulations for continuous period of 5 years. You submitted the following as evidence of the EU citizen’s activity.
(list of documents)
This does not satisfy the Minister that the EU citizen has resided in the State while engaged in employment, self-employment, the pursuit of a course of study, involuntary unemployment or the possession of sufficient resources in conformity of Regulation (6)(3) of the Regulations. Therefore, it does not appear you are entitled to permanent residence as a family member in accordance with Regulation 12(1)(b) of the Regulations.
…
Request for review:
If you feel that the deciding officer has erred in fact or in law, then you may request a review of the above decision. This must be done in accordance with Regulation 21 of the Regulations and should contain the details set out in Form EU4. A request for a review of a decision must be made on Form EU4 within 15 working days.
It is noted that you now have no immigration status in the State. In the event that you do not submit a request for a review of the decision not to grant you a Permanent Residence Card within the prescribed 15 working days, your file will be referred to the Removals Unit, Repatriation Division for consideration under Regulation 20 of the Regulations.
At that moment panic set in. Shocked, confused, alone and scared, after receiving the letter, we immediately contacted a prominent immigration lawyer, booked an appointment and went to see her. Assuming the INIS is overworked, we thought a mistake had happened in their offices. After ten years in Ireland, we had reasonable amount of faith in the public services.
We disclosed everything, looking for realistic, practical advice. What did we get from her? Scaremongering and incorrect advice. She told us that not only my own, but also my wife’s immigration status was not certain, even though she had a Permanent Residence Certificate, which was a serious shock. She said the INIS had become very strict on people who were receiving social welfare and were an economic burden on the State. She said they were deporting as many immigrants in that position as possible.
It seemed even my wife, an EU citizen, could be deported. I felt belittled after being questioned as to why I had even considered applying for a ten-year visa, and not just settled for reapplying for the five-year visa.
We were told that we might have to fight our case in court, and that she would get in touch with a barrister, and get back to us to say what further steps needed to be taken, which she never did.
She took €100 for the consultation. We contacted her a few more times, but she was never available and despite our leaving messages, she never responded.
As a last ditch effort, she had advised us to re-submit our documents and appeal the decision, and also apply for leave to remain in Ireland based on the European Court of Justice’s judgment in the Zambrano case.
She also advised us to take out a Freedom of Information Request to obtain records of the original application.
III – Digging Deeper
We started dissecting the Regulations ourselves, because the solicitor’s advice did not sit well with us. The more we dug, the more we realized that her advice had been misleading.
We racked our brains about what could be wrong with the application. We could not think of any other reason apart from that a document was missing. The letter from the INIS, however, did not specify the exact reason. We collected all the documents again and re-sent them to the INIS.
We were absolutely certain we had provided all proofs and all documents as requested, and that my wife and I both had a legal right to remain in the country.
We decided to appeal the Minister’s decision, meaning more letters, more documents, more legislation, more time, and more effort. I also sent an application for a visa under the Zambrano judgement.
We were considering our options, and we did not have many immediate ones. If I were deported, it would be horrendous for my family. For starters, my wife would be left to look after our child alone in Ireland. It would also make it very difficult for me to return as a deportee. Plus, I seriously feared living in Pakistan as an atheist vegan.
If we were all to move, as non-Muslims, my family would be treated as dangerous outsiders in an intolerant and violent country.
The only other option was to try to move to Lithuania, but for that we needed to show one year of private health insurance costing €5000, paid up front, and enough money in our bank accounts to survive for a year. There was also the small matter that I did not speak Lithuanian, which would have made getting a job extremely challenging.
I also made a Freedom of Information Request to the relevant Officer at the Department of Justice and Equality for a full copy of my original application and supporting documents, so we could go through everything they had on file as part of the application. That was the only way we had of finding out what was actually missing.
The INIS had never been specific about which document was missing, or what were the shortcomings of my application.
Meanwhile, my wife had been getting headaches and having sleepless nights because of the stress of fighting my case, as well as forthcoming exams.
We did not let them break us. We continued our full-times studies, while working part-time. We were sure we had the right to live here, and knew there must be something wrong. But at the same time we knew we were in an extremely vulnerable position.
Also, the temporary extension on my visa was about to expire, and I had exams coming up, which I could not sit if I was thrown out of the country.
This also threw my citizenship application into jeopardy as it cannot be processed without a valid visa.
IV – Aftershocks
We started to delve deeper into the legislation, and sent numerous emails and letters to the INIS, stating relevant legislation which safeguarded my right to remain as a family member of an EU citizen.
The weeks were passing, and we were hardly receiving any responses, even when we were asking for an extension to my temporary visa, while we appealed, and also while the visa under the Zambrano judgement was in process.
We told them about my forthcoming exams, and the threat to my employment which required a valid visa. Even on the rare occasion when we did receive a response, it was completely useless and frustrating, more or less stating:
Your correspondence has been forwarded to the relevant section.
The clock was ticking. Desperation was setting in.
A friend of our’s suggested contacting our local TD, as we could not get answers from the INIS ourselves.
She was quick to reply, and genuinely willing to help. She agreed to send correspondence on my behalf to the INIS, firstly to get an update on my three applications (the appeal, the visa based on Zambrano judgement, and the citizenship application), and secondly, to request a temporary visa extension because of my work and academic circumstances.
Lo and behold, in only a matter of days, I received direct correspondence from INIS via email and post, with a clear update on my three applications, and also with an entitlement to a temporary extension.
The letter had said my appeal was still being assessed, and I would be informed as soon as the Minister had made a decision. It is funny how people higher up in the pecking order can get information about you faster than you can get information about yourself.
When we visited their office on Burgh Quay to extend my visa, we were spoken to very rudely, including being shouted at that we did not have any rights here in this country because my wife was at that time involuntarily unemployed.
But at least we had found a bit of calm in the midst of very rough seas.
V – Another Angle
There was no time to rest while the appeal was in motion. We knew at least that the INIS would have to take all our documentation on file into account at the time of making the final decision.
Looking for another way of communicating our case to the INIS, we came across SOLVIT.
We told them our story, and they offered to send a letter to the INIS spelling out all our legal rights, and why the INIS had no legitimate basis for refusing the application. They performed this service for free, for which we remain extremely grateful.
SOLVIT confirmed that based on all the factors, including that my wife had been resident for over 10 years in Ireland, was involuntarily unemployed, and also had a Permanent Residence Certificate, we indeed had a right to remain as a family in the state.
A few days later they got back to us stating that after pressing the INIS for an answer, they were informed that the INIS had not received a P60 form from my wife, which is why they had rejected my application.
But we were sure we had sent it!
We wrote to the INIS stating that we had already submitted the P60 at least twice. Of course, we also took the precaution of sending a copy again ourselves, and via SOLVIT for good measure too.
More weeks passed by, until one afternoon, I received a call from someone in the INIS, admitting that there had been a mistake with my application (note the passive voice).
They apologised, and said my visa would be approved. She also casually asked me if I could withdraw my Freedom of Information request.
To make it clear, that is all I ever got from them in terms of an apology.
I wonder how many officers go through a single application before the INIS decides to reject it? Are there checks in place, which can offset or safeguard against negligence, laziness or carelessness?
This is the cold and inefficient system we are up against, which has total power to decide the fate of individuals and their families.
VI – Relief at last
A few days later, in May 2017, I finally received a letter stating my application had been approved:
Your application has been examined under the provisions of the Regulations and the Directive.
I wish to inform you that your application has been approved, as you fulfill the relevant conditions set out in the Regulations.
No mention of any mistake, as if the six months of torture had never happened.
A few months later, we received the records in response to our Freedom of Information request. These contained disturbing revelations, which included an internal memo from within the INIS, admitting that the initial application had been ‘incorrectly refused’, and which sought to rectify their mistake by withdrawing their refusal, and closing down the Freedom of Information request itself, unless I responded within ten days. It also suggested that they had only attended to our case because SOLVIT had applied on our behalf.
The Freedom Of Information records contain other information which I will be investigating in the months to come.
*******
I wonder was the INIS even aware of how the legislation operates?
And what of human rights? My child is Irish, and I, as his father, should have an inherent right to be with him in this State. I shudder to consider that I was almost deported because of this.
After being granted my visa, I wanted to complain about my treatment by the INIS. We went to the Ombudsman, but they do not handle immigration matters. We also went to FLAC, and other prominent immigration law firms, who all said that because we had not incurred monetary loss, the INIS had no case to answer. Do stress, mental pain and anguish, as well as a huge amount of wasted time, count for nothing?
Fast forward a few weeks, and my citizenship was granted too.
I wonder what if we had not been fluent in English? We would never have had a chance of overturning this injustice, and been expelled from the country.
So what advice would I have for someone in the situation I found myself? Do your research, and know the legislation like the back of your hand. Don’t blindly trust solicitors to fight for your case. Also, look for ways of using organisations like SOLVIT to communicate with state bodies, or an elected representative, although it should be noted that access to SOLVIT is restricted to EU citizens.
If you are sure you have a right to remain, never give up, keep fighting, and finding new ways to advance your case.
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