Leave to remain in Ireland

Information

Foreign nationals other than EEA and Swiss nationals need permission to live in Ireland. There are different types of permission for non-EEA nationals including those for students and those who are working in Ireland. Other non-EEA nationals who have permission to remain in Ireland are those who have been granted refugee status. One specific type of permission to live in Ireland is known as leave to remain. This is a status that is granted at the discretion of the Minister for Justice and Equality. Leave to remain may be granted to people who have been refused a declaration as a refugee but who are not returned home for humanitarian or other compelling reasons. It may be also be granted to non-EU nationals who have been refused a declaration as a refugee and are not eligible for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 (pdf).

People given leave to remain in Ireland

A person who has been refused a declaration as a refugee and who is not eligible for subsidiary protection, may be granted leave to remain in the State. A person may also withdraw from the asylum process and seek leave to remain in the State. Leave to remain is granted at the discretion of the Minister for Justice and Equality, usually on humanitarian grounds.

There are two groups of asylum seekers who may be given leave to remain in the State:

• Those who withdraw from the asylum process and
• Those who were refused a declaration as a refugee by the Refugee Applications Commissioner, were not granted subsidiary protection and who failed to have this decision overturned by the Refugee Appeals Tribunal

People who normally withdraw from the asylum process and seek leave to remain are:

• People who marry or enter into a civil partnership with an Irish citizen and
• People who marry or enter into a civil partnership an EU citizen.

Irish Born Child Scheme 2005

Prior to 2003, parents of an Irish-born child were also able to withdraw from the asylum process and seek leave to remain. Since February 2003, the Department of Justice and Equality no longer accepts applications for leave to remain, based on a person's parentage of an Irish-born child. In 2005 under the Irish Born Child Scheme (IBC/05) a number of foreign national parents of children born in the State prior to 1 January 2005 were granted leave to remain for an initial period of 2 years. In 2007 under the IBC/05 renewal scheme (pdf) many of them had their leave to remain extended for 3 years subject to certain conditions. In 2010 they can apply for a further 3-year extension of their leave to remain - see 'How to apply' below.

Rights of people granted leave to remain

Persons granted leave to remain do not have all of the same rights as persons granted refugee status. They must have been resident in Ireland for 5 years before they are eligible to apply for Irish citizenship. They do not have the right to family reunification but anyone who is entitled to reside and remain in the State may apply to the Minister to permit family members to join them. The Minister for Justice and Equality can grant or refuse permission on a discretionary basis. In addition, foreign national parents granted leave to remain under the Irish Born Child Scheme (IBC/05) are not eligible for maintenance grants or free fees for third-level education.

Parents of Irish citizen children

On 8 March 2011 the European Court of Justice (ECJ) ruled in the Zambrano case C 34/09, that an EU member state may not refuse the non-EU parents of a dependent child who is a citizen of, and resident in, an EU member state the right to live and work in that member state.

The Department of Justice and Equality is examining the cases of non-EEA parents of Irish citizen minor children which may meet the criteria specified in the Zambrano judgment. If they meet the Zambrano criteria, the non-EEA parents may be given permission to live and work in Ireland without the requirement for an employment permit or business permission. There is a list of frequently asked questions about the Zambrano judgement on the website of the Irish Naturalisation and Immigration Service (INIS).