While Helping Many Undocumented People, the Government’s New Amnesty Scheme Will Leave Others Behind

In October 2018, Amin Ullah almost got a job, he says. “Final step was that I had to send them my passport.”

That killed the offer. The recruitment agency told him he didn’t qualify because he was on a temporary permit, he says, one granted to students after graduation to let them search for work for a couple of years.

Without a job, his permit ran out. Since December 2019, he has been undocumented, working minimum-wage jobs in fear.

When in December 2021, the Department of Justice announceda new amnesty scheme for undocumented people, Ullah began to nurse a hope that he would once again get legal status.

“It was such a big relief, like a light at the end of the tunnel,” he says.

That month, Helen McEntee, the Fine Gael Minister for Justice, hadtold the Dáil that those with expired student permissions could apply to the scheme.

The final scheme, though, set conditions that Ullah can’t meet. He hasn’t been undocumented for long enough.

To apply, paperless people must have amassed four years of continuous undocumented residence – and three years if they have kids – by 31 January 2022, when the Department of Justice starts to accept applications.

The continuous requirement excludes others too, those who may have switched back and forth with periods living without papers, and intervals with permission, even if they have clocked up four years overall.

A spokesperson for the refugee and migrant advocacy group NASC said that it had recommended that the Department of Justice count people’s overall years as undocumented. “Rather than a continuous period,” they said.

A spokesperson for the Justice Department said that it had looked at amnesty schemes in other jurisdictions, and Ireland’s is more generous. “This qualifying period set is at the lower end of the scale.”

Ullah says that not making the cut feels deeply personal and unfair for him and others. “I’m not against anyone being included in the amnesty, in fact, I’m happy for them. But we should also be considered.”

Falling Short

Ullah came to Ireland in 2015 on a student visa, he said. He did a master’s in business administration.

When the course wrapped up, he got two years to look for a job on Stamp 1G, which is granted to students from outside of the European Economic Area (EEA) who graduate from Irish universities.

The job search was tough. Employers all lost interest once they realised he wasn’t on the secure Stamp 4, he says, which meant that he’d need a work permit at some stage and therefore a job at a higher salary than most are willing to pay.

“After the end of my first year on Stamp 1G, I started losing hope, I started feeling that it’s nearly impossible to secure a job,” he says.

In December 2019, his Irish residence permit ran out. For two years, he has been undocumented.

He stayed out of hope something would change, he says. “That the government will do something for us.”

He’d invested too many years of time and hard work in Ireland to leave it behind overnight, he says. “We came here legally, paid college fees, we worked, paid taxes.”

Adriana Riberio, who studied film and television production at Griffith College Dublin, had her last Irish residence permit run out in September 2020, she says, sitting at a café on Pearse Street, fiddling with her feathery necklace.

She considers herself covered by the Justice Minister’s automatic immigration extensions granted due to processing delays prompted by the Covid-19 pandemic, though.

So her stamp 2, the student permission she has, is still valid, she says.

“I’m on the extension, so I have the right to work, right?” says Riberio, who lost her job during the pandemic, and so now owes her college €12,000 in tuition fees and can’t claim her degree without paying it off.

She has little hope of renewing her residence permit though, as graduates for her course don’t qualify for graduate-scheme stamps, meaning she risks becoming undocumented.

Riberio hasn’t even considered applying under the amnesty scheme. She knows she would fall short, she said.

James McGovern, a PhD researcher in immigration law at Trinity College Dublin, says the rationale behind the scheme’s residency condition is unclear.

In the submissions made to the Justice Department on the scheme, McGovern says, most non-profits and law firms had recommended shortening the required period of residency to two or three years.

“And I really don’t know why they went with four. It seems to be a little bit of an arbitrary number,” said McGovern, who says other numbers mentioned in the scheme seem to be broken down a little randomly anyway.

“For instance, you have a person who’s over 23, and a single individual, they have to have had lived four years undocumented,” he says.

“Whereas a partner or spouse of the person who’s been living undocumented in Ireland as an eligible family member only has to be undocumented for two years.”

A spokesperson for the Department of Justice did not reply in detail to queries about the government’s rationale for the scheme’s requirements. But they said the scheme is for those who have been undocumented long-term.

“Understanding the difficulty of having lived with no status for such a long time, the scheme is designed to address their situations rather than extending to people whose immigration permissions may have just recently expired,” they said.

Stops and Starts

McGovern, the PhD researcher, says it’s very common for some, especially those who had their EU Treaty Rights permissions revoked, to stay undocumented for long stretches, but then get a temporary permit while an appeal is pending.

Immigration permissions granted under EU Treaty Rights let citizens of EU countries bring their families with them if they move around within the EU even if one family member is from outside of the European Economic Area.

Those who get a temporary permit before 31 January 2022 would be disqualified from the scheme, even if they’ve been undocumented for years.

“Because you’re not undocumented at the time,” says McGovern. “If you got permission at or before January 31, you’re out.”

Someone might go on a short-term student stamp too, McGovern says, and unwittingly disqualify themselves from the amnesty scheme.

It all comes down to how one understands and defines “undocumented”, McGovern says.

For the new amnesty scheme, he says, the definition centres around the validity of permission even if that permission has little prospect of turning into something secure.

NASC’ssubmission to the Department of Justice on the amnesty scheme recommended broadening who it counts as undocumented.

The scheme should include people who were waiting on a decision on an immigration application, it says.

Albert Llussà, partner and solicitor at the law firm Daly Lynch Crowe & Solicitors, says the scheme is a positive one, overall.

“It is harsh for a small or not-so-small number of people, that criticism can be made about the scheme, but overall it’s a good scheme,” said llussà.

To Apply or Not?

For those looking to apply, there’s also the question of what happens if their applications fail.

A spokesperson for the Department of Justice said that those whose applications are refused would get 30 working days to appeal it. The appeal would be free and looked at by another officer, they said.

If someone decides not to appeal or the appeal fails, “they 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”, they said.

Llussà, the solicitor at Daly Lynch Crowe & Solicitors, says that once an application and an appeal fail,section 3 of the Immigration Act 1999 kicks in. That covers deportation orders.

“This is the process where the minister writes a letter to an applicant saying you no longer have permission to remain in Ireland,” he said.

An applicant then has three options, he says. They could leave Ireland voluntarily, agree to be deported, or apply for permission to remain on humanitarian grounds.

Llussà says that the prospect of deportation can be scary, and stop some from applying. That’s understandable, he says.

McGovern, the PhD researcher, says the risk is there. “I wouldn’t downplay it.”

But some paperless migrants have little to lose by applying, he says, like those who already have a deportation order against them.

Llussà doesn’t recommend that those who fall short of the scheme’s residency conditions try their luck. “It’s a waste of time,” he says.

If someone meeting the residency criteria doesn’t have all the documents required as proof though, they should give it a shot, finding alternative ways to back up their claim, he says. “In that case, I would urge people to apply.”

The Minister for Justice can make a discretionary approval of their alternative evidence of residence beyond what the policy says, he says.

Those who may fall short of the good character requirement of the scheme should also give it a try if they can make a decent case for themselves, said Llussà.

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Author:

Shamim Malekmian: Shamim Malekmian covers the immigration beat for Dublin Inquirer. Reach her at [email protected]

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