EU TREATY RIGHTS AND APPLICATIONS FOR NATURALISATION

We have recently made several applications for naturalisation on behalf of applicants who satisfy the reckonable residency criteria on the basis of their EU Family residence card. In these cases, the applicants have been issued with EU Family residence cards and Stamp 4 permission for five years on the basis that they are a family member of a Union citizen who is exercising their Treaty rights in the State. 

Ordinarily, the applicant is the spouse of a Union citizen who is working in the State. Several of these applications have been made prior to the applicant attaining five years permission to remain from the date of their actual grant of Stamp 4 permission by the EU Treaty Rights Section. For various reasons, they have sought to make the application earlier. We have made the argument on their behalf that they enjoyed an entitlement to reside since their date of marriage to the Union citizen and that their reckonable residency should be calculated from the date of marriage. 

Until recently we had encountered no difficulties with this submission. However in the last two weeks, we have received refusals in two such cases. In both of these cases, the Citizenship Unit have explicitly stated that EU family permission to remain is taken from the date such permission is granted ie not from date of marriage. In both cases we have responded to the Citizenship Unit asking that they urgently review the refusals, making the strong submission that as the family member of an EU citizen who has exercised EU free movement and who has been economically active in the State, the applicant enjoyed a right to reside from the date of marriage pursuant to Article 7 of Directive 2004/38EC, (the Directive) the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) (the Regulations). Our argument is that such permission was not contingent or conditional on making any application to the Minister; it was an entitlement derived from EU law. 

We have not had this type of response until now and it remains to be seen how the Citizenship Unit will deal with such applications going forward. While our legal arguments appear sound, on a practical level these refusals may cause difficulties for applicants and anyone in this position is best advised to ensure they are in a position to make a permanent residency application or an application for retention to keep their permission in date and enable them to maintain their permission beyond the five year EU Family card. 

Rebecca Keatinge

Brophy Solicitors

VISA APPLICATIONS FOR EU CITIZEN AND THEIR FAMILY MEMBERS EXPLAINED

The EU Directive governing the family reunification for EU citizens exercising their Free Movement Rights is Directive 2004/38/EC. This is separate from national law. On INIS, www.inis.gov.ie, there is a choice to make an application of being a family member of an EU citizen or otherwise under national law. EU citizens and their family members have a right under residence, under Article 6 of the Directive, for up to three months in the State without any conditions.

The form of visa to be issued is a single entry C visa. To be granted a visa under the Directive, the applicant must prove that they are either a i) a qualifying family member or ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.

Qualifying Family Members include:

i) the spouse of the EU citizen

ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)

iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21

iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner

v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner

Permitted Family Members include:
i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained. 

ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.

The applicant must prove:

i) that there is an EU citizen from whom they can derive rights from under the Directive;

ii) the existence of the required relationship as either a qualifying or permitted family member;

iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.

The proofs that are required are:

i) proof of identity (for example, valid passports for the applicant and the EU citizen);

 

ii) proof of the required relationship (e.g. a birth certificate or a marriage certificate);

iii) for a permitted family member, proof of dependency or membership of the household;

iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland at the time of arrival of the applicant family member (proof of travel to Ireland, for example).

The INIS website lists types of supporting documentary evidence. There is no need for additional proofs, such as evidence of employment or letter of invitation. 

Refusals can be made on the following grounds:

i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);

ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or

iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.

Member states are not obliged to recognise a polygamous marriage where this is not allowed in their national law, as is the case for Ireland, thus this time of marriage cannot be relied upon as proof of the family relationship. Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship. However, marriages including a person under the legal age of marriage in Ireland may be allowed, if the legal age was met in the country where the marriage was entered into. 

If refused, the applicant may, in addition to, or as an alternative to, exercising their right of appeal, submit a new visa application for consideration. Any such application will be considered separately from their application and will not affect their right to appeal.

Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications. 

If the visa is approved and the applicant wishes to reside in Ireland for more than three months, then they should make an application (when in the State) for a residence card (GNIB card) of a family member of an EU citizen to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.

Ciara Dowd 

Brophy Solicitors