Information Note - Amendments to Immigration and Citizenship Law provided for in the Civil Law (Miscellaneous Provisions) Act, 2011

 

The Civil Law (Miscellaneous Provisions) Act, 2011 was enacted by the Oireachtas on 27 July, 2011. It was signed into law by the President on 3 August, 2011. The new legislation provides for a number of amendments to Immigration and Citizenship law.

 

Part 10 and Part 11 of the Act provide for amendments to the Irish Nationality and Citizenship Acts and the Immigration Act, 2004 respectively.

 

Part 10: Amendments to the Citizenship Acts

Section 33 of the Act contains a number of amendments to the Irish Nationality and Citizenship Acts 1956 to 2004 to:

  • make provision for civil partners to receive treatment equal to married couples in the context of citizenship matters,
  • provide a clear statutory framework within which granting of certificates of naturalisation can take place in formal citizenship ceremonies, and
  • provide greater flexibility for the Minister to prescribe fees in the context of applications for citizenship.

 

Part 11: Amendments to the Immigration Act, 2004 (Appendix 1)

Section 34 makes provision for replacement of sections 11 and 12 of the Immigration Act 2004 in response to the High Court ruling on 25 March, 2011 in the case of Ebere Dokie v. DPP, HRC, Ireland and the Attorney General (792JR/2008), that section 12 is inconsistent with the Constitution.

 

A further significant change introduced by these amendments is the disapplication of the obligations of sections 11 and 12 in relation to EEA nationals and their dependents exercising Treaty Rights of free movement in similar fashion as currently is the case for Irish and UK citizens.

 

Paragraph (a) of section 34 inserts a new section 11 into the Immigration Act 2004. The primary changes from the old section 11 are:

  • in subsection (2), whereby a non-national is required to be in possession of and to present his or her passport or other equivalent document (this is not specified currently), and any other information reasonably required, when requested to do so by an immigration officer.
  • Subsection (3) creates an offence for failure to comply with the requirements of the section and also provides that it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section.
  • For the purposes of section 11 and Section 12 the definition of a non-national is revised to mean a person who is neither an Irish citizen nor an EEA national or Non-EEA dependant who has established a right to enter and be present in the State in accordance with EU Treaty Rights of free movement (Subsection (5)).  Therefore, sections 11 and 12 do not apply to such persons.

 

The position of EEA Nationals and their third country family members is governed by the Free Movement of Persons Regulations.

 

It remains the case, of course, that persons seeking to enter or reside in the State on the basis that they are nationals of another Member State or dependants of same are required to provide satisfactory evidence of identity and nationality to establish that basis.

 

Paragraph (b) inserts a new section 12 into the Immigration Act 2004 requiring (subsection (1)) a non-national to produce on demand (defined at subsection (3) for the purposes of establishing that his or her presence in the State is not in contravention of section 5 a valid passport or other equivalent document establishing his or her identity. Failure to comply with this requirement is an offence (subsection (2)). Subsection (2) (b) provides that is shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section. The section does not apply to persons under 16 years of age. However, unlike the old section 12, there is no longer an exemption for non-nationals born in Ireland.

 

Paragraph (c) inserts a new section 19 into the Immigration Act 2004 to provide for a flexible system of fees for certain immigration services. Subsection (1) identifies the services in respect of which fees can be levied. Subsection (2) allows the Minister to refuse to provide these services if the appropriate fee has not been paid. Subsection (3) allows a registration officer to refuse to issue a registration certificate if the appropriate fee has not been paid. Subsection (4) is a technical provision. Subsection (5) is the power for the Minister to make regulations to prescribe different fees to be paid in different circumstances or in respect of different permissions. Subsection (6) allows the Minister to prescribe the circumstances whereby fees can be waived. Subsection (7) defines the term ‘‘travel document’’.

 

 

Appendix 1

Amendments to section 11, 12 and 19 of the Immigration Act 2004 contained in section 34 of the Civil Law (Miscellaneous Provisions) Act 2011

Requirements as to documents of identity and supply of information.

11.—(1) Every person (other than a person under the age of 16 years) landing in the State shall be in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality.

(2) Every person landing in or embarking from the State shall furnish to an immigration officer, when requested to do so by that officer—

(a) the passport or other equivalent document referred to in subsection (1), and

(b) such information in such manner as the immigration officer may reasonably require for the purposes of the performance of his or her functions.

(3) (a) A person who contravenes this section shall be guilty of an offence.

(b) In proceedings brought against a person for an offence under this section, it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section to which the offence relates.

(4) This section does not apply to any person (other than a non-national) coming from, or embarking for, a place in the State, Great Britain or Northern Ireland.

(5) In this section and section 12, ‘non-national’ means a person who is neither—

(a) an Irish citizen, nor

(b) a person who has established a right to enter and be present in the State under the European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977), the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 (S.I. No. 57 of 1997) or the European Communities (Free Movement of Persons) regulations 2006 and 2008.

Requirements as to production of documents.

12.—(1) Every non-national present in the State (other than a non-national under the age of 16 years) shall produce on demand—

(a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and

(b) in case he or she is registered or deemed to be registered under this Act, his or her registration certificate.

(2) (a) A non-national who contravenes this section shall be guilty of an offence.

(b) In proceedings brought against a person for an offence under this section, it shall be a defence for the person to prove that, at the time of the alleged offence, he or she had reasonable cause for not complying with the requirements of this section to which the offence relates.

(3) In this section ‘on demand’ means on demand made at any time by the Minister, any immigration officer or a member of the Garda Síochána, for the purposes of establishing that the presence in the State of the non-national concerned is not in contravention of section 5.

 

 

Fees.

19.—(1) (a) There shall be paid to the Minister by the non-national concerned in respect of the making of an application for, or the giving of, a permission, or both, such fee (if any) as may be prescribed with the consent of the Minister for Public Expenditure and Reform.

(b) There shall be paid to the registration officer concerned by the non-national concerned in respect of the issue of a registration certificate such fee (if any) as may be prescribed with the consent of the Minister for Public Expenditure and Reform.

(c) There shall be paid to the Minister by the non-national concerned in respect of the issue of a travel document such fee (if any) as may be prescribed with the consent of the Minister for Public Expenditure and Reform.

(2) The Minister may refuse to—

(a) consider an application for a permission,

(b) give a permission, or

(c) issue a travel document,

if the appropriate fee, prescribed under 10 paragraph (a) or (c) of subsection (1), has not been paid.

(3) The registration officer concerned may refuse to issue a registration certificate if the appropriate fee, prescribed under subsection (1)(b), has not been paid.

(4) A fee payable under this section may be recovered by the person to whom it is payable from the person by whom it is payable as a simple contract debt in any court of competent jurisdiction.

(5) Regulations under subsection (1)(a) may prescribe different fees to be paid in different circumstances or in respect of different permissions (including permissions to which different conditions are attached under section 4(6)).

(6) Regulations under this section may provide for the waiver in specified circumstances of any prescribed fees, including fees payable by—

(a) adult persons unable without undue hardship to arrange for their payment for themselves and their dependants,

(b) applicants within the meaning of the Act of 1996, and

(c) persons in respect of whom a declaration (within the meaning of that Act) is in force.

(7) In this section, ‘travel document’ means a document (other than a document to which section 4(1) of the Refugee Act 1996 refers) issued solely for the purpose of providing the holder with a document which can serve in lieu of a national passport.".