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
 

Increase in EU funding to help countries cope with migration flows

Although the movements of persons into, out of and within each EU State vary, each society shares similar migration challenges and opportunities. The EU is an area without internal borders, therefore migration bears great significance. MEPs voted on 6 February to increase EU money to help these countries cope with migration flows. Overcrowded refugee centres lacking even basic supplies have become a more frequent sight in many EU border-states in the wake of the crisis. The European Parliament adopted crucial proposals that enable an increased co-financing rate for Member States subject to financial support on actions concerning the management of migration flows (European Refugee Fund, the European Return Fund and the European Fund for the Integration of Third-Country Nationals and External Borders Fund).

The proposal:

·         Covers 4 funds making up "Solidarity and management of migratory flows" framework: European Refugee Fund, European Return Fund, European Fund for Integration of third-country nationals and External Borders Fund.

·         Increased co-financing of the migration-related funds for member states included in the financial support mechanisms.

·         Co-financing (part financed by the EU) to increase 20 percentage points to 70%. For countries covered by the cohesion fund the increased rate would be maximum 95%.

For further information, the following link provides access to an interview with Finnish Liberal MEP Nils Torvalds, who is responsible for steering the plans through Parliament: http://www.europarl.europa.eu/news/en/headlines/content/20130201STO05566/html/More-funding-for-refugees-The-way-we-handle-asylum-seekers-is-unacceptable

Brophy Solicitors 

12.02.13 

EU TREATY RIGHTS AND PERMANENT RESIDENCY

SUCCESSFUL APPLICATION FOR PERMANENT RESIDENCY UNDER EU TREATY RIGHTS LEGISLATION

We were delighted to receive a positive decision in a case concerning the non-EU spouse of an EU national who had separated from his wife in the State after almost 6 years of marriage. 

We submitted that our client was entitled to rely on Article 16 (the permanent residency article) of the Directive having resided with his wife in the State for 5 years.  He and his wife had not divorced and his wife remained a worker in the State.  We also sought to rely on Article 13 (retention of the right to reside) of the Directive given that our client has evidence of marriage to an EU national for 3 years with one year of continuous residency in the State.

Such applications present a series of problems.  When preparing this application, we discovered that Form EU 3 for Permanent Residency is completely inappropriate for a person in our client’s position. Both the non-EU applicant and his spouse/former spouse are requested to sign the form and the EU spouse is expected to provide 5 years worth of documentation to prove his/her residency and activities in the State.  Our client’s relationship had broken down and it was onerous and unjust to expect him to call on his wife for assistance with his application for permanent residency in the State.  We submitted that our client’s right to retain his residency in the State was on an individual basis in accordance with Article 13. 

One other glaring defect with such cases is that neither the Directive nor the Regulations provide for situations where spouses who have benefited under the Directive have separated and have not divorced.  We put forward that the deciding officer must act in accordance with our Constitution with a view to protecting spouses whose marital relationship has broken down but who have not divorced.  To decide otherwise would be contrary to the Constitution and the protection of the institution of marriage in this State. 

Our client has been a worker in the State for almost ten years.  We are pleased that the Minister sought to purposively construe the Regulations and Directive in light of our client’s circumstances.  Our client can now finally resolve his marital problems in the State and has been permitted to work and reside in the State for the next ten years.

Brophy Solicitors

11.08.11

EU TREATY RIGHTS

RETENTION OF RESIDENCY PURSUANT TO EUTR IN CASE OF DIVORCE/SEPARATION

We confirm that we have received a positive decision from the EUTR Section confirming that our client may retain residency in the State on the basis of EU Treaty Rights on the grant of a divorce from his EU National spouse. In March 2011 we had notified the Department that our client was the holder of residence card pursuant to Directive 2004/38/EC and the 2006 Regulations since December 2007, having been married to an EU national since 2004.  We further notified the Department that he and his wife were recently divorced. We called on the Minster to confirm our clients right to retain his right to reside in the State.  We relied on Article 13 (2) (a) of Directive 2004/38/EC, as implemented by Regulation 10 (2) (b) of the 2006 Regulations, which provides that family members of Union Citizens shall not entail the loss of the right of residence in circumstances where, prior to the initiation of the Divorce, the marriage lasted 3 years, one year of which was in the Member State.  By decision of July 2011, the Minister responded in the following terms, “We can confirm that your client retains his current right of residence”.

We welcome this decision. However, we now call on the Minister to issue similar decisions in respect of pending applications where the applicant is separated, but not yet divorced from their EU National spouse. Where there is a marital breakdown, which has not resulted in a divorce, an unusual situation occurs whereby the family member cannot rely on the protections of Article 13/Regulation 10. We argue that it would be contrary to our Constitution’s recognition of the special position of the family in the State to require a spouse, whose marriage is in difficulty and has led to separation, to divorce in order to avail of the residence protections provided for in Directive 2004/38/EC.

Brophy Solicitors

4/8/11