Obtaining independent residency status following separation or domestic violence

Domestic Violence Info Card produced by Domestic Violence Coalition

Following a successful campaign by Nasc and the Domestic Violence Coalition, the INIS published a policy in August 2012 providing for retention of residency by migrant victims of domestic violence who would otherwise be dependent on their abuser to renew their immigration permission. The INIS immigration guidelines for victims of domestic violence are available here.

The term ‘domestic violence’ goes beyond actual physical violence. It can also involve emotional abuse; the destruction of property; isolation from friends, family and other potential sources of support; threats to others including children; stalking; and control over access to money, personal items, food, transportation and the telephone.

No one should have to suffer domestic violence and it is a matter that is taken seriously by the authorities. You do not have to remain in an abusive relationship in order to preserve your entitlement to remain in Ireland.

If you are the victim of domestic violence by a close family member (including spouse, partner, parent or child) Nasc’s legal service can assist you to make an application for independent residency. Find out more about our free legal service here.

Although Nasc has welcomed the publication of guidelines on the INIS website which contain information on dealing with cases where a person who is a victim of domestic violence wishes to obtain immigration status independent of their relationship with the perpetrator, we remain concerned about the lack of clarity in these guidelines and will continue to campaign for legislation and enhancement of the guidelines.

Until such time as the additional reforms are implemented, we hope that the following information assist migrants who experience domestic abuse:

Contents

1. Obtaining independent residency status

2. What is a “dependent spouse” for immigration purposes?

a. Stamp 3 Immigration Permission Holders

b. Stamp 4 Immigration Permission Holders

c. Stamp EU Fam 4

3. Obtaining independent residency – a case study

4. How do I go about making an application for independent residency?

5. Campaigning for Change

6. Asking for your feedback

1. Obtaining independent residency status

Victims of domestic violence whose permission to reside in the state is dependent on that of their spouse find themselves in a particularly difficult situation. Neither Ireland’s immigration legislation nor any official policy of the Irish Naturalisation and Immigration Service (INIS) provides a solution for people who find themselves in such situations. It has been our experience that abusive spouses may use their spouse’s dependent immigration permission to further intimidate him/her, and that an abused spouse will often mistakenly believe that he or she would be forced to leave the country if they leave the family home or the marriage. In fact, it has been our experience that the INIS tends to look favourably on well-documented applications for independent residency status for spouses who are experiencing domestic abuse.

Following a decision of the European Court of Justice in March 2011, the State is also obliged to grant permission to reside and work to the parents of dependent Irish citizen children, under the Treaty on the Functioning of the European Union (TFEU).  This decision may provide an alternative or additional ground for an application by any dependent spouse who is also the parent of an Irish citizen child. Further information about this is available here.

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2. What is a “dependent spouse” for immigration purposes?

What we refer to here as “dependent” permissions to remain in the state, or “dependent” immigration status, are those permissions granted by the INIS to non-EEA nationals, on the basis of their marriage to or relationship to someone else. Examples include:

• spouses of work permit holders
• de-facto partners of Irish nationals (same-sex or opposite-sex couples)
• spouses/civil partners of Irish nationals
• family members of refugees who are here on Family Reunification
• spouses of EEA nationals who have been granted residence in the State on the basis of Directive 2004/38EC

Dependent spouses and partners, like all legal residents of the state, are issued with a Certificate of Registration (otherwise known as a “GNIB card”), by the Garda National Immigration Bureau. This card will state which kind of permission or “Stamp” the person has been granted. The various categories of “Stamps” indicate the nature of the permission that has been granted to the resident.

A dependent immigration permission holder is normally only permitted to register by presenting to the GNIB with their spouse or partner.  Their legal residency is tied to that of their spouse or partner.

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a. Stamp 3 Immigration Permission Holders

Stamp 3 immigration permission is normally issued to spouses or partners of non-EEA nationals (excluding refugees) resident in the State.

Stamp 3 permission precludes a person from taking up employment without applying for a work permit and from accessing social protection payments in their own right.  There is no right to retain this residency in the event of a separation or divorce.

Stamp 3 holders are especially vulnerable if they become victims of domestic violence due to their exclusion from the labour market and their inability to access social protection.  Stamp 3 holders may be unable to access refuges or shelters if they leave their abusive homes as shelters are generally unable to offer more than emergency accommodation to those who not in receipt of social protection.

A Stamp 3 holder may be able to register at the local GNIB office without recourse to the INIS if they have a dependent Irish citizen child.  In all other cases, applications for independent residency by Stamp 3 holders should be made to the General Immigration Division of INIS.  Information on how to apply and the type of information to be included in the application is detailed below.

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b. Stamp 4 Immigration Permission Holders

Stamp 4 immigration permission is normally issued to spouses, civil partners and de facto partners of Irish nationals.  Stamp 4 permission entitles the holder to freely access the labour market and to apply for social protection.  Stamp 4 permission does not, however, automatically qualify a person to receive a social protection payment.  Under section 246 of the Social Welfare Consolidation Act, 2005 one must be considered habitually resident in the State to qualify for a payment.

This permission does not carry any automatic right of retention of residency in the case of separation or divorce.  In the event that the Stamp 4 holder separates from their Irish citizen spouse/civil partner/de facto partner they are under an obligation to inform the INIS of this fact.  The INIS will then make a decision as to whether the Stamp 4 holder will be permitted to retain their residency independently of their spouse/civil partner/de facto partner.

Applications for independent residency by Stamp 4 holders who are spouses or civil partners of Irish nationals should be made to the Spouse/Civil Partner of an Irish Citizen Unit of the INIS.  Applications by de facto partner of Irish citizens should be made to the General Immigration Division of INIS.  Information on how to apply and the type of information to be included in the application is detailed below.

Family members of refugees also have Stamp 4 permission.  Unlike other Stamp 4 holders however, family members of refugees granted permission to remain in the state by the Minister for Justice under section 18 of the Refugee Act, 1996 (as amended) retain a right of residency in the event of separation from the refugee.  Section 18(3)(a) of the 1996 Act provides that family members of refugees are entitled to their rights and privileges under Section 3 of the Refugee Act 1996, as amended, so long as the refugee continues to reside in the State.

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c. Stamp EU Fam 4

Stamp EU Fam 4 is only issued to family members of EEA citizens. This right of residency derives from the Citizens Directive (Directive 2004/38EC).  Holders of a Stamp EU Fam 4 are permitted to reside and work in the State and access social protection on the same basis as an EEA national.

Article 13 of Directive 2004/38EC provides for the retention of Stamp EU Fam 4 residency by the spouse of an EEA national in the event of divorce or annulment of the marriage or termination of the registered partnership under certain circumstances:

• the marriage or registered partnership has lasted at least three years including one year in the host Member State; or
• the non-EEA spouse or partner has custody of the Union Citizen children; or
• the divorce/annulment or termination was warranted by particularly difficult circumstances, such as domestic violence while the marriage or partnership was existing;
• the non-EEA spouse or partner has a right of access to a minor child provided that a court has ruled that such access must take place in the host Member State.

Applications made under section 13 of the Directive should be addressed to the EU Treaty Rights Section of the INIS.

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3. Obtaining independent residency – a case study

Sarah (not her real name), originally from Pakistan, came to Ireland in 2007 to reside with her husband who was initially resident in the State as a work permit holder and subsequently attained long term residency. As the dependent of her husband, she was granted permission to reside, and issued with a Stamp 3.

Sarah is a victim of domestic violence and decided to remove herself from the marital home in order to ensure their safety and secured accommodation at a local women’s refuge. Sarah was subjected to physical, emotional and financial abuse by her husband and applied for a Barring Order against her husband. The District Court granted her a Protection Order as an interim measure.

The refuge in which Sarah was residing informed her that they could only accommodate her for a maximum of three weeks as she was not in receipt of a social welfare payment. Sarah applied for an Exceptional Needs Payment through a HSE Homeless Unit. This application was refused on the basis that Sarah’s Stamp 3 immigration status did not permit her to access social welfare. Sarah was left with no option but to return to the marital home. Sarah felt that it was too dangerous for her to give evidence against her husband in the pending Barring Order hearing while she continued to depend on him for accommodation. Her solicitor sought an adjournment of proceedings.

Sarah was referred to Nasc by OSS Cork, a Domestic Violence Information Resource Centre. Nasc submitted a detailed representation to INIS requesting that Sarah be granted Stamp 4 immigration status independent of her husband as she was a victim of domestic violence. Nasc’s request for Stamp 4 immigration status centred on the fact that Sarah would be unable to remove herself from a violent situation unless she was given Stamp 4 immigration status, as she would then be in a position to receive social welfare payments and safe housing. In addition, acquiring Stamp 4 immigration status would allow Sarah to give evidence at the impending barring order hearing without fear of reprisals or intimidation from her husband. In order to ensure that a holistic approach was taken in this case, Nasc worked in collaboration with OSS Cork, her solicitor and the women’s refuge in which she was residing in order to gather the documentation that was required to effectively demonstrate the extremely precarious situation that Sarah was in.

Nasc requested that Irish Nationalisation and Immigration Service (INIS) expedite this application in order to ensure the safety and welfare of Sarah and her daughter and we corresponded with a designated customer liaison official in INIS. INIS granted Sarah Stamp 4 immigration status independent of her husband within two weeks of our submission being lodged. Sarah was then able to remove herself from the marital home, and to access safe housing and social protection.

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4. How do I go about making an application for independent residency?

We strongly recommend that victims of domestic violence seek legal advice in submitting an application for independent residency.  Please contact Nasc for further information. 

INIS does not provide any guidelines or have a form for applications of this nature. You should write a letter describing your circumstances, detailing the breakdown of your relationship and enclosing any documentation that would support what you are saying.

If you are a Stamp 3 holder your application should request that you are transferred to a “Stamp 4”, which would entitle you to live and work in Ireland independently of your spouse.  If you are already a Stamp 4 holder your application should request that you be given permission to retain your existing permission independently of your spouse. It has been our experience that well-documented applications are dealt with in a fair and timely manner by the INIS.

Your letter of application should include the following information and documentation:

• Your immigration status and that of your spouse (include Department of Justice reference numbers)
• A copy of the letter granting you your original permission to remain in the State (if available)
• Give the dates and general circumstances of the arrival in the state of both spouses
• Enclose copies of passports and GNIB cards (if available)
• Say whether there are children of the marriage, their ages and, briefly, circumstances. Please note that, if you have a child or children who are citizens of Ireland, the state is obliged to grant permission to the parents on whom they depend to reside and work here. See this page for more information.
• Outline the history of domestic abuse. Include approximate dates and present the information in chronological order if possible. It is very important to enclose documentation to vouch; for example a letter from GP, and/or domestic violence support service, and/or social worker, and/ or Gardaí, and/or refuge/ shelter etc.
• Describe any legal action taken eg. a Barring or Protection Order. Enclose copies of any District Court orders that have issued. If proceedings are due to be issued, you should include a letter from your solicitor confirming this.
• Describe the current circumstances. Are you still living with the abusive spouse in the family home? Are any legal applications pending? Are the children safe? Are you in any immediate danger?

If the application is successful, you will receive a letter from the INIS confirming that you have been granted independent immigration status for a period of time or confirming that you have been permitted to retain your right of residency in the State. If you have been granted a change of status from Stamp 3 to Stamp 4 you should present at your local GNIB office, with this letter and your passport, where you should be issued with a new Certificate of Registration (GNIB card) endorsed with a Stamp 4.

Please note that the information contained in this document was correct at the time of publication. This is not a substitute for legal advice.

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5. Campaigning for Change

Nasc is a member of the Domestic Violence Coalition, which was formed in 2011.   The members consist of Nasc, The Irish Immigrant Support Centre, Longford Women’s Link, Sonas, Council of Ireland, AkiDwA, the Domestic Violence Advocacy Service, Women’s Aid, and Doras Luimní.

The coalition aims to ensure that the government:

• Provides formal recognition of domestic violence in immigration law by making provisions that enable dependant family members to apply to remain in Ireland as victims of domestic violence;

and

• Pending the determination of applications to remain in Ireland, providing that victims of domestic violence can access safe emergency housing and essential welfare benefits to meet basic needs.

You can follow the progress of the campaign on our website at http://www.nascireland.org under Campaigns.

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6. Asking for your feedback

We would welcome your feedback on any aspect of this publication or in respect of the campaign. If you have found this guide useful, we would love to hear from you. Likewise, if you have a question about any aspect of it, please don’t hesitate to contact us.