Immigration and the challenges it poses for same-sex couples. MarriagEquality Response to the impact of immigration on same-sex relationships
People in same-sex relationships do not have a statutory right to be granted permission to remain in Ireland. It is doubtful that the introduction of civil partnerships will reverse this situation.
The recognition of unmarried relationships in the immigration context is fundamental if the right to family life, as recognized in international, European and domestic law, is to be fully respected and protected.
Ensuring that a couple can be together within the same country is a basic fundamental consideration that requires serious attention.
More detailed information on immigration, it's impact on same-sex couples, and what has been recommended to resolve this serious situation is detailed below.
Immigration and the challenges it poses for same-sex couples In Ireland, domestic law does not provide specifically for a right to enter and remain in Ireland for the purposes of family reunification, except for certain family members of EU nationals and refugees.
All Irish citizens and people who are legally resident in Ireland are permitted to apply for family reunification in respect to their partner and dependent family members. However, there are no clear guidelines and criteria for the submission and processing of these types of applications, which leads to a significant amount of delays and inconsistencies.
In practice, unmarried couples are not treated equally in the immigration process. As same-sex couples do not have access to marriage they are especially vulnerable.
When making an application, married couples are not required to have been in a relationship for any particular length of time. In contrast to this, a requirement which is totally unfair, is that unmarried couples in so called 'de facto relationships' are required to demonstrate evidence of a 'durable attested' relationship and cohabitation of a period of at least four years when applying for residency.
A person wishing to make an application for residency can do so through the Irish Naturalisation and Immigration Service (INIS). The application is then decided on the absolute discretion of the Minister for Justice, Equality and Law Reform. Unfortunately, applications for unmarried partners often take 12 months or longer to process, and even if a permit is granted, a person is not guaranteed any particular outcome or right to work in Ireland. This can obviously put huge financial pressure on a couple when only one person is earning.
Unmarried couples, particularly same-sex couples, are required to consider other ways in which the foreign partner can enter Ireland legally, either for study or work purposes.
When a non-EU/EEA applicant secures permission to enter Ireland legally, the permission must be renewed on an annual basis. In contrast, spouses and partners of EU/EEA nationals are generally granted 5 year permits with full access to the labour market.
A legally resident foreign partner can make an application to change their immigration status and to remain in Ireland on alternative grounds, namely that they are in a relationship with an Irish person or other legal resident.
However, this type of application is decided subject to the absolute discretion of the Minister for Justice, Equality and Law Reform and it can take anything from several months to years for the any decision to be made.
In recent times, the Minister has favorably considered a number of cases and has granted the foreign partners of some Irish citizens permission to reside and to work in Ireland for a period of twelve months, which may be renewed.
However, there are many other cases where foreign partners have been granted residency on a dependency basis only.
In some cases, due to the difficulty in accessing information regarding their rights and entitlements or even the possibility of applying, the partners of Irish citizens have been living in Ireland illegally for lengthy periods of several years.
Aware that their relationship is not legally recognized, couples are fearful of making an application that may be declined, leading to the foreign partner being required to leave Ireland or even being deported.
The situation in Ireland is vastly out of line with the laws or administrative arrangements adopted by many other countries. Indeed, in most western European countries, legal recognition to varying degrees has been given to same-sex partnerships.
In the UK for example, if unmarried, it is a requirement to demonstrate a relationship of two years duration when seeking to join a family member residing in the UK. However, if you are a 'civil partner' you have full equality with married couples.
To-date similar significant steps towards recognizing same-sex unions have been taken by governments as widely spread as Israel, New Zealand, Canada and South Africa. More recently, the US state of California and Norway introduced marriage for lesbian women and gay men. Hopefully Ireland will join these first pioneers of civil marriage for same-sex couples in the world.
What has been recommended in Ireland?
A recently published report from the Equality Authority included a recommendation that same-sex partnerships be recognised with regard to immigration. Following on from this report, the National Economic and Social Forum (NESF) recommended that partnership rights should include the right of a non-EU partner of a Irish person to live and work in Ireland and that, in the absence of legislation, the relevant Government Departments should establish 'appropriate mechanisms' to provide equal rights to residency and work entitlements for foreign partners of Irish citizens, as are provided to married heterosexual couples.
In contrast, the Law Reform Commission, whilst taking the view that unmarried couples should be entitled to certain rights, recommended that no changes should be made to immigration laws insofar as they apply to unmarried partners at present. It would appear that the considerable human rights considerations of people affected were not taken into account in their decision making process.
Action is needed now to resolve the impact that immigration legislation has on same-sex couples.
To find out how you can help, contact MarriagEquality, (01) 659 9459 or firstname.lastname@example.org.