EU Treaty Rights

Delko

Hi,

I have a visa query relating to Stamp 4 EUFam, and was wondering if anyone has had any first hand experience.

Basically, have any Irish Nationals excercised their EU Treaty Rights in an EU member state outside of Ireland, and then applied for a Stamp 4 EUFam visa for their Non-EU wife or husband back in Ireland?

Thanks,

Paul.

blueythebear

Delko wrote: »

Hi,

I have a visa query relating to Stamp 4 EUFam, and was wondering if anyone has had any first hand experience.

Basically, have any Irish Nationals excercised their EU Treaty Rights in an EU member state outside of Ireland, and then applied for a Stamp 4 EUFam visa for their Non-EU wife or husband back in Ireland?

Thanks,

Paul.

I presume you are referring to a situation is where an Irish husband living in say, France wishes to apply for a visa for his non-EU National spouse to live in Ireland. If that's the case, the Irish immigration authorities will not issue such a visa because the spouses are not living together. The best thing to do is to apply for EU Treaty rights in the country in which the irish citizen is living in.

Delko

Hi,

Thanks a lot for the fast reply.

The situation would be more the case of both the husband (Irish national) and wife (non-EEA national) living in Ireland.

Seems as though under Article 7 of the EU Treaty Rights Directive 2004/38/EC, the Irish national could not exercise their EU Treaty Rights from within Ireland, they would have to be residing in another EU member state.

The EU Treaty Rights would need to be exercised in another member state, and then say following 4 months of residence in that country with their wife, if the Irish national was to move back to Ireland with their wife, then an application could be made in Ireland for a EUFam visa for their wife.

I am not too sure about the legal definitions for residing in another EU member state with respect to working etc.

Theoretically, would it be possible to continue working in Ireland whilst residing in another EU state, such as Northern Ireland?

Thanks,

Paul

blueythebear

Delko wrote: »

Hi,

Thanks a lot for the fast reply.

The situation would be more the case of both the husband (Irish national) and wife (non-EEA national) living in Ireland.

Seems as though under Article 7 of the EU Treaty Rights Directive 2004/38/EC, the Irish national could not exercise their EU Treaty Rights from within Ireland, they would have to be residing in another EU member state.

The EU Treaty Rights would need to be exercised in another member state, and then say following 4 months of residence in that country with their wife, if the Irish national was to move back to Ireland with their wife, then an application could be made in Ireland for a EUFam visa for their wife.

I am not too sure about the legal definitions for residing in another EU member state with respect to working etc.

Theoretically, would it be possible to continue working in Ireland whilst residing in another EU state, such as Northern Ireland?

Thanks,

Paul

If both are in Ireland, there is no scope to rely on EU treaty rights as the Irish citizen has to be exercising their own EU Treaty rights by residing in another EU State. An application shold be based on Irish law in this case.

If your spouse has some form of permission to remain at the minute, she should be able to get permission to remain by having both of you attend the GNIB with the relevant documentation (marriage cert, bills showing you both live at same address, any other documentation to show you have a subsisting marriage). If she does not have permission to remain at the minute, she is technically here illegally and an application must be made in writing in this regard. I'd suggest a good immigration solicitor if this is the case, just to be on the safe side.

dermot_sheehan

Singh principle,

Ordinarilya person can not exercise eu treatyrights in their own state. If however they go to another eu state with their non eu spouse and then return they have option of being assessed under national rules or same rules applicable to eu nationals exercising treaty rights.

blueythebear

gabhain7 wrote: »

Singh principle,

Ordinarilya person can not exercise eu treatyrights in their own state. If however they go to another eu state with their non eu spouse and then return they have option of being assessed under national rules or same rules applicable to eu nationals exercising treaty rights.

Good point. Forgot about that. That being said though, it's really more of an academic point. On a practical level, would you not think it's not more convenient and less messy to proceed under the Immigration Acts anyway? rather than having to make a more involved application under EU Treaty rights? Not to mention the shortened route to Irish citizenship (3 years residence requirement)?

Dandelion6

blueythebear wrote: »

On a practical level, would you not think it's not more convenient and less messy to proceed under the Immigration Acts anyway? rather than having to make a more involved application under EU Treaty rights?

It isn't necessarily more convenient and less messy to do it all within Irish law. Under EU Treaty Rights the decision on the non-EU spouse's residency is supposed to be made within six months. There is no such time limit in Irish law and if the immigration officer decides that the foreign spouse has to formally apply for residency on the basis of marriage to an Irish national (which they usually do when the foreign spouse is from a visa-required country), it can take up to 18 months.

Delko

Thanks a lot for taking the time to reply.

Was in work until late, so am only getting the chance to reply now.

The case study would be more the case of the following:

The husband (an Irish citizen, who has always lived and resided in Ireland) and his wife (a Chinese National with a Stamp 4 visa), both work and live in Ireland.

Unfortunately, as the Chinese Government do not allow their Nationals to have dual citizenship, the wife, in the future, will most likely be unable to become an Irish citizen and enjoy the same travel freedoms as her husband as it would ultimately mean giving up her Chinese passport.

The couple therefore appear as if they will always be at a distinct disadvantage when it comes to traveling within the European Union together.

According to the Department of Justice, a Stamp 4 and a Stamp 4EUFAM are both considered residency cards. However, a Stamp 4 does not come under Article 10 of Directive 2004/38/EC, and is therefore not a residency card under this Article. A Stamp 4 is issued to the non-EU family member of an Irish national. It is issued under Irish law, namely the Immigration Act 2004. Stamp 4EUFAM is granted to the non-EU family member of a union citizen.

The Department of Justice therefore appears to be discriminating against Irish nationals, which ultimately is resulting in them and their families being at a disadvantage when traveling through the EU.

As the Stamp 4 EUFam card would appear to offer more flexible travel/holiday options within the EU (a visa would not be required from the embassy of each EU country prior to traveling), the couple are very interested in determining the exact criteria for exercising their EU Treaty Rights in another Member State.

The EU Treaty Rights section at the Department of Justice are not contactable by telephone, and do not offer the facility of having a face to face meeting at the Burgh Quay INIS Visa office. It is the policy of the office that all correspondence must be in writing.

"Exercising your EU Treaty Rights" is defined in the Directive under
Article 7:

Right of residence for more than three months

1. All Union citizens shall have the right of residence on the
territory of another Member State for a period of longer than
three months if they:

(a) are workers or self-employed persons in the host Member
State; or

(b) have sufficient resources for themselves and their family
members not to become a burden on the social assistance
system of the host Member State during their period of
residence and have comprehensive sickness insurance cover
in the host Member State; or

(c) ?€” are enrolled at a private or public establishment, accredited
or financed by the host Member State on the basis
of its legislation or administrative practice, for the principal
purpose of following a course of study, including
vocational training; and

?€” have comprehensive sickness insurance cover in the
host Member State and assure the relevant national
authority, by means of a declaration or by such equivalent
means as they may choose, that they have sufficient
resources for themselves and their family members not
to become a burden on the social assistance system of
the host Member State during their period of residence;
or

(d) are family members accompanying or joining a Union
citizen who satisfies the conditions referred to in points (a),
(b) or (c).

2. The right of residence provided for in paragraph 1 shall
extend to family members who are not nationals of a Member
State, accompanying or joining the Union citizen in the host
Member State, provided that such Union citizen satisfies the
conditions referred to in paragraph 1(a), (b) or (c).

The INIS office would require evidence of a person’s activities in another Member
State as outlined in 1.(a), (b) or (c) above, as well as evidence of
residence (rental agreements/utility bills/bank statements etc).

The Directive applies to all Union citizens who move to or reside in a
Member State other than that of which they are a national, and to their
family members who accompany or join them. (Article 3 of Directive
2004/38/EC)

If as an Irish national you have exercised your EU Treaty Rights in another
Member State with your family member and have now returned to the Irish
State you may apply.

Evidence of having exercised your EU Treaty Rights in the other Member
State in respect of you and your family member must be submitted with the
application along with all other relevant documentation.

Based on the above, would the criteria be satisfied if:

1) the couple rented an apartment/room in Northern Ireland for 4 months, and spent each night there.
2) Had sufficient financial resources, as evidenced by bank statements for the duration of residing in Northern Ireland, to show that they were not a burden on the host state.
3) The wife applied for a UK visa to enter Northern Ireland prior to traveling there.
4) And if both still commuted from Northern Ireland to their jobs in Ireland on a daily basis.

Not too sure about the precise legal definition of residing in a country with respect to working in a different country.

Apologies for the long reply, but just thought the additional information may help in determining a path forward within the confines of the applicable legislation.

Thanks a lot.

IH77

Delko wrote: »

As the Stamp 4 EUFam card would appear to offer more flexible travel/holiday options within the EU (a visa would not be required from the embassy of each EU country prior to traveling), the couple are very interested in determining the exact criteria for exercising their EU Treaty Rights in another Member State.

Despite having a "stamp 4", as a Chinese national I believe you would still need a visa for the UK

A non-EEA national family member of an EEA national must hold an EEA family permit if they are coming to the UK with the EEA national or joining them in the UK

Though am not sure about the requirements of other EU countries, but I believe for most (in the schengen area anyway) you should just be able to travel visa free (as long as you are travelling with the Irish/EU citizen). You would probably have to satisfy the immigration officer of each country that you were related to the Irish/EU national (by providing a marriage certificate and possibly other evidence you were in a genuine relationship).

When you say 'exercising treaty rights' do you mean visiting France for the weekend (which I don't believe is exercising treaty rights) or the Irish/EU national working or looking for work (which would be exercising treaty rights)?

blueythebear

Delko wrote: »

Thanks a lot for taking the time to reply.

Was in work until late, so am only getting the chance to reply now.

The case study would be more the case of the following:

The husband (an Irish citizen, who has always lived and resided in Ireland) and his wife (a Chinese National with a Stamp 4 visa), both work and live in Ireland.

Unfortunately, as the Chinese Government do not allow their Nationals to have dual citizenship, the wife, in the future, will most likely be unable to become an Irish citizen and enjoy the same travel freedoms as her husband as it would ultimately mean giving up her Chinese passport.

The couple therefore appear as if they will always be at a distinct disadvantage when it comes to traveling within the European Union together.

According to the Department of Justice, a Stamp 4 and a Stamp 4EUFAM are both considered residency cards. However, a Stamp 4 does not come under Article 10 of Directive 2004/38/EC, and is therefore not a residency card under this Article. A Stamp 4 is issued to the non-EU family member of an Irish national. It is issued under Irish law, namely the Immigration Act 2004. Stamp 4EUFAM is granted to the non-EU family member of a union citizen.

The Department of Justice therefore appears to be discriminating against Irish nationals, which ultimately is resulting in them and their families being at a disadvantage when traveling through the EU.

As the Stamp 4 EUFam card would appear to offer more flexible travel/holiday options within the EU (a visa would not be required from the embassy of each EU country prior to traveling), the couple are very interested in determining the exact criteria for exercising their EU Treaty Rights in another Member State.

The EU Treaty Rights section at the Department of Justice are not contactable by telephone, and do not offer the facility of having a face to face meeting at the Burgh Quay INIS Visa office. It is the policy of the office that all correspondence must be in writing.

"Exercising your EU Treaty Rights" is defined in the Directive under
Article 7:

Right of residence for more than three months

1. All Union citizens shall have the right of residence on the
territory of another Member State for a period of longer than
three months if they:

(a) are workers or self-employed persons in the host Member
State; or

(b) have sufficient resources for themselves and their family
members not to become a burden on the social assistance
system of the host Member State during their period of
residence and have comprehensive sickness insurance cover
in the host Member State; or

(c) ?€” are enrolled at a private or public establishment, accredited
or financed by the host Member State on the basis
of its legislation or administrative practice, for the principal
purpose of following a course of study, including
vocational training; and

?€” have comprehensive sickness insurance cover in the
host Member State and assure the relevant national
authority, by means of a declaration or by such equivalent
means as they may choose, that they have sufficient
resources for themselves and their family members not
to become a burden on the social assistance system of
the host Member State during their period of residence;
or

(d) are family members accompanying or joining a Union
citizen who satisfies the conditions referred to in points (a),
(b) or (c).

2. The right of residence provided for in paragraph 1 shall
extend to family members who are not nationals of a Member
State, accompanying or joining the Union citizen in the host
Member State, provided that such Union citizen satisfies the
conditions referred to in paragraph 1(a), (b) or (c).

The INIS office would require evidence of a person’s activities in another Member
State as outlined in 1.(a), (b) or (c) above, as well as evidence of
residence (rental agreements/utility bills/bank statements etc).

The Directive applies to all Union citizens who move to or reside in a
Member State other than that of which they are a national, and to their
family members who accompany or join them. (Article 3 of Directive
2004/38/EC)

If as an Irish national you have exercised your EU Treaty Rights in another
Member State with your family member and have now returned to the Irish
State you may apply.

Evidence of having exercised your EU Treaty Rights in the other Member
State in respect of you and your family member must be submitted with the
application along with all other relevant documentation.

Based on the above, would the criteria be satisfied if:

1) the couple rented an apartment/room in Northern Ireland for 4 months, and spent each night there.
2) Had sufficient financial resources, as evidenced by bank statements for the duration of residing in Northern Ireland, to show that they were not a burden on the host state.
3) The wife applied for a UK visa to enter Northern Ireland prior to traveling there.
4) And if both still commuted from Northern Ireland to their jobs in Ireland on a daily basis.

Not too sure about the precise legal definition of residing in a country with respect to working in a different country.

Apologies for the long reply, but just thought the additional information may help in determining a path forward within the confines of the applicable legislation.

Thanks a lot.

From the above, it seems logical that there are two choices. Try to assert EU rights for the Chinese spouse on the basis that the Irish citizen has moved to another EU state and returned to Ireland (although I'm unsure if the Irish citizen has done so) or go the Irish Citizenship route.

One point to bear in mind is if you live in the North and work in Ireland, you would have to apply to the UK immigration authorities for EU treaty rights for the Chinese spouse. While the relevant UK legislative provisions would be very similar to what you listed above (the Irish rules), as both come from an EU Directive, directives by their very definition allow some scope for the host nation to decide on how they implement the rules so that the rules won't be exactly the same necessarily.

Applying for EU treaty rights in the UK on the basis that the Irish citizen is living in the North could easily fail. I don't know anything about UK immigration policy in this regard, but in living in the North, it would seem that you are trying to artificially create a scenario to ensure that EU Treaty rights can be invoked and it could be said that as a matter of public policy, a situation cannot be artificially generated to allow an applicant to invoke EU Treaty rights. It is difficult to say what the outcome of such an application would be. In addition, I don't know if the UK equivalent of the EU FAM visa will allow for free travel without the need for a visa in other EU countries.

If you go down the Irish citizenship route, the Chinese spouse does not need to inform the Chinese authorities of their Irish citizenship. As far as I'm aware, under Chinese law, you are not allowed to have dual citiizenship and in doing so, you automatically renounce your Chinese citizenship. If you are caught out in this regard, it's a simple matter to revert back to your Chinese citizenship by renouncing your alternative citizenship (which should not affect your Irish Citizenship as you have to formally renounce that too!). However, I'm unsure of how closely this type of thing is monitored by the Chinese government and if either country must inform the other of citizenship status. The above would best be checked out by someone far more knowledgable on Chinese law than me!

PS Residence in a country is not defined by moving there for 4 months in a year. The reference to 3 months (from where I think the 4 months came from?) in the legislation is a reference to the fact that any EU citizen can live in another EU country for up to 3 months with no problems. After this they must prove that they have sufficient means/a job/are studying etc in order to stay longer or they can technically be deported

blueythebear

Oh and one other thing...On reflection, I don't think that an irish EU FAM stamp negates the need to get a visa for other EU countries. I think the entitlements are the same as a regular stamp 4.

If she's here on stamp 4 already, a changeover to permission based on the marriage can be done by attending the GNIB with the relevant documents (i.e. no written application should be required). I would do that as soon as possible regardless of any future applications you intend to make.

Creole

Delko - from what you have written I gauge that you have read the Directive and know what your treaty rights are...namely that, if you work outside Ireland for 6 months in another EU country then your wife, as the spouse of a returning Irish citizen who has been exercising his treaty rights, has a right of enter Ireland with you under EU law. No matter what is said, Ireland is an EU state and is subject to EU law and said Directive.

All you need to do is apply on form EU1 - present that when re-entering Ireland, along with your marriage certificate. That is all you are required to do legally. It may be that further down the line you are asked to prove that your marriage is genuine etc but you will then know what you have to provide. To be honest, speculation about what the outcome of application might be or what might happen, isnt going to help. You are already forearmed with the knowledge that EU law 'stands' in Ireland. Bear in mind you will be applying under EU law, not Irish law. As long as you follow correct EU1 procedure then you will be fine. I'd be extremely suprised if Irish authorities could disregard EU law in an EU state, if you are making a genuine application. It may be that you will wait a while before your application is decided, but thats the case with any application isnt it, and EU route is quicker in any event.

The information you need - including downloadable EU1 form - is freely available on the inis.gov.ie website. Its a very clear and well written website especially in terms of guidelines for those applying for non-EU spouses.

IH77

Creole wrote: »

...namely that, if you work outside Ireland for 6 months in another EU country then your wife, as the spouse of a returning Irish citizen who has been exercising his treaty rights, has a right of enter Ireland with you under EU law.

Is this part correct? I couldn't see where it said there was a requirement to work (or exercise a treaty right) for a period of six months?

blueythebear

IH77 wrote: »

Is this part correct? I couldn't see where it said there was a requirement to work (or exercise a treaty right) for a period of six months?

Under the Singh principle as mentioned above, you can return to your native country and exercise EU Rights. However, I'm unsure of what length of time you would have to spend in another EU country in order to do so. 6 months sounds like a reasonable time.

However, the OP seems to be of the view that the Chinese spouse, with an EU FAM stamp on their passport, does not need to get a visa to travel to other EU Countries. I'm pretty certain that an EU FAM stamp does not allow a 3rd country national to move freely within the EU and that this determination is dependent on the immigration policies of each individual country she wishes to travel to.

Basically, if she wishes to travel to France, she needs to comply with the rules for entry of Chinese nationals to that country. Similarly if she wishes to go to Germany or another EU Country.

Greatly in her favour in respect of the applications for visas, is the fact that she lives in Ireland and is married to an Irish citizen and will be traveling with him. This should all be emphasized in any future visitor visa applications for other EU countries.

Creole

One thing is that, EU law transcends domestic law of an EU country. So for instance, a 3rd country spouse doesn't need, say, a Schengen Visa to travel to a Schengen EU country. Article 5

Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by any other means that they are covered by the right of free movement and residence.

So thats pretty clear, you dont have to have the Schengen but you DO have to prove you are covered by free movement/residence. Although in reality I bet you will be scrutinised and have lots of questions thrown at you. People interpret things differently. But again its back to EU law and not the domestic law of a country. If you are a person able to calmly stand your ground, have marriage certificate and anything else relevant with you...plus you carry copy of Directive with you with relevant parts highlighted!just in case, then you should be ok, plus you will obviously be travelling with your passports as ID, wont you? Some countries are more relaxed at border than others but essentially if its EU the same rule applies to all no matter what they may try to tell you.

If it were me I would rather go through the above than apply for a visa and risk refusal stamp relating to a visa document that isnt needed in the 1st place. Just a thought, but in the end its about what you think is best for you personally.

Still - the law is the law.

Creole

oops, hit 'reply' button before I'd finished!

No matter where s/he is from, an non-EU spouse acquires the rights of free movement and residence via his/her partner once relevant application and procedure is completed. So it wouldnt matter what their country of origin is, since this right is derived from EU law. I dont think one could get away with treating an established non-EU spouse differently according to which particular country they were born in.

Re. 6 months exercising treaty rights..I dont think this is set in stone but as 'bluey' says, seems to be accepted following the 'Singh' judgment. Anything less than 6 months might seem a little odd I suppose, although I dont know how much this matters but it could be something authorities would have the right to challenge.

walrusgumble

blueythebear wrote: »

Good point. Forgot about that. That being said though, it's really more of an academic point. On a practical level, would you not think it's not more convenient and less messy to proceed under the Immigration Acts anyway? rather than having to make a more involved application under EU Treaty rights? Not to mention the shortened route to Irish citizenship (3 years residence requirement)?

On a practical level and in general, Irish Citizens have NO statutory rights to have their spouses reside in Ireland. It is at the discretion of the Minister. In reality, for most non eu spouses who come from non visa required countries such as the US, they won't have too much problems registering at the GNIB. However, if they are from visa required countries, they may have to make an application to the mjelr, which in effect may take up to 1 - 1 1/2 years.

If the non eu spouse is living in Ireland and had legal status previously, there normally won't be a problem, simply going to the GNIB will sort it out. But, if the spouse is illegal or their own legal status expires, then there might be a few headaches, depending on the facts of the case. Even with article 8 of the echr, the minister may still succeed in saying no, depending on the facts of the case. (eg spouse has a deportation order)

With regard to EU Treaty Rights, as seen in Metock, an eg Italian living in Ireland could meet and marrying a non eu citizen even if the non eu citizen was illegal under Irish domestic laws, and still be granted status; so long as the Italian complies with the Directive 2004/38 EC.

So naturally, it would be far better and more supportive to rely on EU laws via SIngh principle if the Irish man and his spouse resided in another EU state and then, excercising their treaty rights returned to Ireland.

One thing though, 4 months is slightly optimistic, could be accused of abuse by Irish authorities who at this time are not very happy with the directive for a number of reasons. Whilst a the contrasting case of Akrich may be in a bit of limbo since Jia and Metock, one would on the safe side wait until maybe 1 yearish.

There is nothing preventing the non eu spouse's entitlement to apply for citizenship two years earlier than the normal five,once they are living in "Ireland" regardless of being here offically under "married to irish national - stamp 4 visa" and "EU Treaty Rights Stamp4 EU Fam". As seems to be the case here. One would remember, living in the 6 counties IS SUFFICIENT, it applies to the whole of the island
Section 15 A of INC Act 1956-2004

(1) Notwithstanding the provisions of section 15, the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse of an Irish citizen if satisfied that the applicant—
(a) is of full age,
(b) is of good character,
(c) is married to that citizen for a period of not less than 3 years,
(d) is in a marriage recognised under the laws of the State as subsisting,
(e) and that citizen are living together as husband and wife and that citizen submits to the Minister an affidavit in the prescribed form to that effect,
(f) had immediately before the date of the application a period of one year’s continuous residence in the island of Ireland,
(g) had, during the 4 years immediately preceding that period, a total residence in the island of Ireland amounting to 2 years,
(h) intends in good faith to continue to reside in the island of Ireland after naturalisation, and
(i) has made, either before a judge of the District Court in open court or in such manner as the Minister, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.

(2) The Minister may, in his or her absolute discretion, waive the conditions at paragraph (c), (f), (g) or (h) of subsection (1) or any of them if satisfied that the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship.

(3) Paragraph (h) of subsection (1) shall not apply to an applicant for a certificate of naturalisation to whom subsection (4) applies.

(4) Any period of residence outside the island of Ireland, during which—
(a) the applicant for a certificate of naturalisation to which this section applies was married to and living with his or her spouse, and
(b) that applicant’s spouse was in the public service,
shall be reckoned as a period of residence in the island of Ireland for the purposes of calculating—
(i) continuous residence under paragraph (f) of subsection (1), or
(ii) total residence under paragraph (g) of that subsection.


In your op's case, just hang on and she can get citizenship herself, regardless of living in NI or Rep. But, she would probably have to register with British Authorities if she wishes to live in NI, which won't be too much problems so long as you follow Article 7 (note your treaty rights itself, don't be an unreasonable burden to the host state)

walrusgumble

blueythebear wrote: »

From the above, it seems logical that there are two choices. Try to assert EU rights for the Chinese spouse on the basis that the Irish citizen has moved to another EU state and returned to Ireland (although I'm unsure if the Irish citizen has done so) or go the Irish Citizenship route.

One point to bear in mind is if you live in the North and work in Ireland, you would have to apply to the UK immigration authorities for EU treaty rights for the Chinese spouse. While the relevant UK legislative provisions would be very similar to what you listed above (the Irish rules), as both come from an EU Directive, directives by their very definition allow some scope for the host nation to decide on how they implement the rules so that the rules won't be exactly the same necessarily.

Applying for EU treaty rights in the UK on the basis that the Irish citizen is living in the North could easily fail. I don't know anything about UK immigration policy in this regard, but in living in the North, it would seem that you are trying to artificially create a scenario to ensure that EU Treaty rights can be invoked and it could be said that as a matter of public policy, a situation cannot be artificially generated to allow an applicant to invoke EU Treaty rights. It is difficult to say what the outcome of such an application would be. In addition, I don't know if the UK equivalent of the EU FAM visa will allow for free travel without the need for a visa in other EU countries.

If you go down the Irish citizenship route, the Chinese spouse does not need to inform the Chinese authorities of their Irish citizenship. As far as I'm aware, under Chinese law, you are not allowed to have dual citiizenship and in doing so, you automatically renounce your Chinese citizenship. If you are caught out in this regard, it's a simple matter to revert back to your Chinese citizenship by renouncing your alternative citizenship (which should not affect your Irish Citizenship as you have to formally renounce that too!). However, I'm unsure of how closely this type of thing is monitored by the Chinese government and if either country must inform the other of citizenship status. The above would best be checked out by someone far more knowledgable on Chinese law than me!

PS Residence in a country is not defined by moving there for 4 months in a year. The reference to 3 months (from where I think the 4 months came from?) in the legislation is a reference to the fact that any EU citizen can live in another EU country for up to 3 months with no problems. After this they must prove that they have sufficient means/a job/are studying etc in order to stay longer or they can technically be deported

I would agree with the concerns. this State and Britain have to put it midly being freaked out with the trouble singh, akrich and jia and later Metock have caused.None of the EU State's have acted in comformity with implementing this directive.

You would note though, the ECJ seem to have lost patience with any state effectively putting "needless" obstacles in the way of a person exercising their EU rights, look at the preamble of the Directive to see its clear intentions.

Preamble
(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of "family member" should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(8) With a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa within the meaning of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are
exempt from that requirement 1 or, where appropriate, of the applicable national legislation

(9)Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to job-seekers as recognised by the case-law of the Court of Justice.

(11) The fundamental and personal right of residence in another Member State is conferred directly on Union citizens by the Treaty and is not dependent upon their having fulfilled administrative procedures.

(14) The supporting documents required by the competent authorities for the issuing of a registration certificate or of a residence card should be comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence by Union citizens and their family members

(25) Procedural safeguards should also be specified in detail in order to ensure a high level of protection of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State, as well as to uphold the principle that any action taken by the authorities must be properly justified.

As for the directive itself Artilce 4 (right of exit) provides
1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory
of a Member State to travel to another Member State.

2. No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.

3. Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.

4. The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or
renewed shall be not less than five years.

Article 5 which deals with right of entry
1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter
their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.(ie eu fam stamp 4)

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain
the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

5. The Member State may require the person concerned to report his/her presence within its territory within a reasonable and non-discriminatory period of time. Failure to comply with this requirement may make the person concerned liable to proportionate and non-discriminatory
sanctions.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:EN:PDF

It would be best to reside and work for a decent period of time in ni with partner to get rid of any suspicions of trying to create any certain scenerio.

The matter regarding Chinese nationality is not as easy as you think. if she becomes an irish citizen and wants to take a trip to china the chinese may start asking questions about the lack of up to date residency stamps from the host state (on the chinese passport) moreover, if she reverts back to chinese citizenship, she has to, by chinese law, denounce her Irish citizenship

At the end of the day, you don't really need to go to the north, assuming your wife has permission to reside in the south on basis of marriage. Your wife may still need a visa to other schengen countries regardless of where she lives. the stamp 4 and stamp 4 eu are the same, but simply express the basis for the stamp. your wife may not have too much problems travelling with you when you are exercising your eu rights to go to say, paris for a weekend - artilce 6. just bring the marriage cert (though her stamp on her passport will clearly say that she is resident under domestic law on basis of marriage to an irish national thus an eu citizen).

Creole

If border control/EU states aren't understanding Directive then its simply because they dont want to implement it.

However the law is the law, and as EU member states they must abide by it. If they fail to deal with an EU treaty rights application in accordance with Directive then the applicant will simply win on appeal. Appeals have already been won on this basis.

Notwithstanding that every applicant is different - but if a genuine and longstanding relationship exists and all other paperwork is in order, then invoking all sorts of domestic law in an attempt to refuse an application under EU law would be irrelevant.

All the EU citizen and spouse have to present upon re-entering is marriage certificate and passport. A completed form EU1 would be useful..all other investigations will be done later on. If its a genuine application then there shouldnt be any worries hence, make sure application is in order, make the application and then simply provide any further information required as and when request is made.

The information is on INIS website for all to see regarding requirements so whoever raised the original query regarding EU treaty rights will be able to view it. Added to that, the Directive in itself is pretty clear.

EU route is easiest, thats one thing that is apparent.

blueythebear

walrusgumble wrote: »

On a practical level and in general, Irish Citizens have NO statutory rights to have their spouses reside in Ireland. It is at the discretion of the Minister. In reality, for most non eu spouses who come from non visa required countries such as the US, they won't have too much problems registering at the GNIB. However, if they are from visa required countries, they may have to make an application to the mjelr, which in effect may take up to 1 - 1 1/2 years.

If the non eu spouse is living in Ireland and had legal status previously, there normally won't be a problem, simply going to the GNIB will sort it out. But, if the spouse is illegal or their own legal status expires, then there might be a few headaches, depending on the facts of the case. Even with article 8 of the echr, the minister may still succeed in saying no, depending on the facts of the case. (eg spouse has a deportation order)

With regard to EU Treaty Rights, as seen in Metock, an eg Italian living in Ireland could meet and marrying a non eu citizen even if the non eu citizen was illegal under Irish domestic laws, and still be granted status; so long as the Italian complies with the Directive 2004/38 EC.

So naturally, it would be far better and more supportive to rely on EU laws via SIngh principle if the Irish man and his spouse resided in another EU state and then, excercising their treaty rights returned to Ireland.

One thing though, 4 months is slightly optimistic, could be accused of abuse by Irish authorities who at this time are not very happy with the directive for a number of reasons. Whilst a the contrasting case of Akrich may be in a bit of limbo since Jia and Metock, one would on the safe side wait until maybe 1 yearish.

There is nothing preventing the non eu spouse's entitlement to apply for citizenship two years earlier than the normal five,once they are living in "Ireland" regardless of being here offically under "married to irish national - stamp 4 visa" and "EU Treaty Rights Stamp4 EU Fam". As seems to be the case here. One would remember, living in the 6 counties IS SUFFICIENT, it applies to the whole of the island
Section 15 A of INC Act 1956-2004

(1) Notwithstanding the provisions of section 15, the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse of an Irish citizen if satisfied that the applicant—
(a) is of full age,
(b) is of good character,
(c) is married to that citizen for a period of not less than 3 years,
(d) is in a marriage recognised under the laws of the State as subsisting,
(e) and that citizen are living together as husband and wife and that citizen submits to the Minister an affidavit in the prescribed form to that effect,
(f) had immediately before the date of the application a period of one year’s continuous residence in the island of Ireland,
(g) had, during the 4 years immediately preceding that period, a total residence in the island of Ireland amounting to 2 years,
(h) intends in good faith to continue to reside in the island of Ireland after naturalisation, and
(i) has made, either before a judge of the District Court in open court or in such manner as the Minister, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.

(2) The Minister may, in his or her absolute discretion, waive the conditions at paragraph (c), (f), (g) or (h) of subsection (1) or any of them if satisfied that the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship.

(3) Paragraph (h) of subsection (1) shall not apply to an applicant for a certificate of naturalisation to whom subsection (4) applies.

(4) Any period of residence outside the island of Ireland, during which—
(a) the applicant for a certificate of naturalisation to which this section applies was married to and living with his or her spouse, and
(b) that applicant’s spouse was in the public service,
shall be reckoned as a period of residence in the island of Ireland for the purposes of calculating—
(i) continuous residence under paragraph (f) of subsection (1), or
(ii) total residence under paragraph (g) of that subsection.


In your op's case, just hang on and she can get citizenship herself, regardless of living in NI or Rep. But, she would probably have to register with British Authorities if she wishes to live in NI, which won't be too much problems so long as you follow Article 7 (note your treaty rights itself, don't be an unreasonable burden to the host state)

I realize that there is no automatic / statutory right for spouses of Irish citizens to remain in the country. However, in practise, if it can be shown that the marriage is not one of convenience and there are no exceptional circumstances warranting a refusal, such an application will not be refused, especially considering the spouse is already present and working here (presuming the Chinese spouse has permission to be in the country as the fact that she is working does not necessarily mean she is here legally!).

The OP wants an EU FAM stamp for his spouse. There is a problem with this as the OP's circumstances do not qualify him for EU rights at the moment as he hasn't moved to the North yet. There is the question of how to bring himself within the sphere of EU treaty rights.

There are questions under the Singh principle (how long to leave Ireland for and stay in the North and whether this will be a successful application given the fact that the couple are engineering a situation to bring themselves within EU law) and there are questions surrounding whether moving to the North will be seen as the husband exercising EU Treaty rights so as to get the wife EU FAM stamp in the North. I don't know the answers to these questions. On a strict reading of the law, it would seem that the couple can do this but I have a niggling feeling that there's case law to the contrary.

In relation to your statement that there is no requirement for the spouse to have the required 5 years of residence prior to an application for citizenship (3 years if spouse of Irish citizen), this is correct in terms of the law but unfortunately, the practise is that the application is submitted and initially screened for the 5 year requirement. It gets immediately rejected if the required reckonable residency criterion is not met. This can't be challenged (unless the rejection is based on an incorrect calculation of the applicant's reckonable residency by the Department) as the decision is at the Minister's discretion and citizenship itself is a privilege and not a right.

blueythebear

I think I'm retarded....

OP wants to bring his wife within the sphere of EU law so that she can travel freely within the EU. Doesn't that happen if they travel together? So she has permission to stay in Ireland under the marriage. They travel together to France. He's exercising EU Treaty rights, therefore she can enter upon proving the relationship. No need to discuss Singh, Akrich, Jia etc.

walrusgumble

blueythebear wrote: »

I realize that there is no automatic / statutory right for spouses of Irish citizens to remain in the country. However, in practise, if it can be shown that the marriage is not one of convenience and there are no exceptional circumstances warranting a refusal, such an application will not be refused, especially considering the spouse is already present and working here (presuming the Chinese spouse has permission to be in the country as the fact that she is working does not necessarily mean she is here legally!).

The OP wants an EU FAM stamp for his spouse. There is a problem with this as the OP's circumstances do not qualify him for EU rights at the moment as he hasn't moved to the North yet. There is the question of how to bring himself within the sphere of EU treaty rights.

There are questions under the Singh principle (how long to leave Ireland for and stay in the North and whether this will be a successful application given the fact that the couple are engineering a situation to bring themselves within EU law) and there are questions surrounding whether moving to the North will be seen as the husband exercising EU Treaty rights so as to get the wife EU FAM stamp in the North. I don't know the answers to these questions. On a strict reading of the law, it would seem that the couple can do this but I have a niggling feeling that there's case law to the contrary.

In relation to your statement that there is no requirement for the spouse to have the required 5 years of residence prior to an application for citizenship (3 years if spouse of Irish citizen), this is correct in terms of the law but unfortunately, the practise is that the application is submitted and initially screened for the 5 year requirement. It gets immediately rejected if the required reckonable residency criterion is not met. This can't be challenged (unless the rejection is based on an incorrect calculation of the applicant's reckonable residency by the Department) as the decision is at the Minister's discretion and citizenship itself is a privilege and not a right.

Had I read all the other posts I would not have gone on such a long and repetitive sing song, as ye all had already mentioned most of this. Sorry. To be honest, my opinion at first was that, no disrepect to op, all was not well with the op & wife and department, thus some need to try and get here to stay on another basis.

I had edited my post after properly reading op's original post but obviously not that well to leave out stuff that was irrelevant.

She obviously was allowed to stay here, be it on the fact that she is married to Irish National or had already independent basis of having stamp 4.

Yes EU Treaty rights don't kick in yet. My comments were general observations of the difficulties Irish citizens have with family reunification where the other family member is a non EU national, particularily under domestic laws if they are from certain countries. - However, here in this case, such considerations were not relevant as op's spouse already had stamp 4 (a bit I originally missed out on). I would agree that I would not readily a freely simply throw ones self to the mercy of Singh as Akrich on the facts of its own case, dismissed certain matters - ie engineering the situation as seen in Akrich, it involved an asylum seeker illegal in England (again on the facts of its own case - do we know which case for certain what the op's case). Burgh Quay and Home Office would most certainly be keeping tabs over these situations. On the safe side, properly relocating to NI for a decent period of say 1-2 years would be better.

I would simply say to OP, relax, stay in the south and they (him and spouse) would still get over and back to mainland EU reasonably without too much restrictions/hassle via the op's Treaty Rights itself and via artilces 2,3 and 6 of Directive 2004/38 EC. If wife has to get visa, so be it, they can't be refused. From reading the intentions of the op, they may not fall under EU Treaty (sposue commuting to and from NI) Besides, the chances of even op getting work in NI at this time is surely slim and none.

With regard to citizenship, I should have made it clear as to when she should apply. ye it will be five years (or more) by the time a decision is given after making the application when she makes the 3 year mark.(people who get a declaration of refugee status also are allowed after 3 years residency to apply) in all as it takes 2 years after making an application or so simply for a decision to occur. State are arguing that delay is due to resources and that they are at this time dealing with circa 10,000 applications. Courts will not interfere and order the Minister to refrain from further delays. Moreover, within a year of waiting, the department will request further documents such as recent payslips etc - maybe to make sure that the applicant is still around. I should, like you,have emphasised the privlidge of applying for citizenship and not make my comments sound like it was a right of citizenship (as that particular right was taken away in the 2001ish amenment)

Naturally one would NOT make the application UNTIL the correct residency requirement is met. Give it 3 1/2 years (make sure wife HAS had residency on basis of marriage before hand) Save hassle, make sure the passport stamps clearly mark out with relevant registration stamps and there are NO GAPS as to time in permission to remain in Ireland. Having claiming Citizenship whilst residing with Irish spouse in the north might be messy. Getting a "letter of reckonable residency" from the Superintendent of GNIB will be handy so it will let you know in advance what the GNIB records of registration is.

walrusgumble

blueythebear wrote: »

I think I'm retarded....

OP wants to bring his wife within the sphere of EU law so that she can travel freely within the EU. Doesn't that happen if they travel together? So she has permission to stay in Ireland under the marriage. They travel together to France. He's exercising EU Treaty rights, therefore she can enter upon proving the relationship. No need to discuss Singh, Akrich, Jia etc.

Yes. Shouldn't have too many problems. Yes Akrich Singh are not relevant.

walrusgumble

Creole wrote: »

If border control/EU states aren't understanding Directive then its simply because they dont want to implement it.

However the law is the law, and as EU member states they must abide by it. If they fail to deal with an EU treaty rights application in accordance with Directive then the applicant will simply win on appeal. Appeals have already been won on this basis.

Notwithstanding that every applicant is different - but if a genuine and longstanding relationship exists and all other paperwork is in order, then invoking all sorts of domestic law in an attempt to refuse an application under EU law would be irrelevant.

All the EU citizen and spouse have to present upon re-entering is marriage certificate and passport. A completed form EU1 would be useful..all other investigations will be done later on. If its a genuine application then there shouldnt be any worries hence, make sure application is in order, make the application and then simply provide any further information required as and when request is made.

The information is on INIS website for all to see regarding requirements so whoever raised the original query regarding EU treaty rights will be able to view it. Added to that, the Directive in itself is pretty clear.

EU route is easiest, thats one thing that is apparent.

yes the directive is clear and the EU route would be the easiest route. but its of very little use to op 's right to family reunification if he can't get a job or start his own business in NI or meet the other qualifications under artilce 6,7 and 14 ,assuming he moves up to the north


INIS website is not relevant if they move north or to another eu state. (granted there should not be too much difference, the Irish tend to copy the brits)

If he has work, established life here in the south, and his wife has residence under Irish law, he does not really need to go north if he really does not want too. if its only on the concern of being able to travel around europe with the misses,he will easily be able to do this with his wife if they go travelling , bar maybe the hassle of getting an intial entry visa (for wife) to schegen countries etc, but then the states should assist them.

Supercell

Creole wrote: »

So thats pretty clear, you dont have to have the Schengen but you DO have to prove you are covered by free movement/residence. Although in reality I bet you will be scrutinised and have lots of questions thrown at you. People interpret things differently. But again its back to EU law and not the domestic law of a country. If you are a person able to calmly stand your ground, have marriage certificate and anything else relevant with you...plus you carry copy of Directive with you with relevant parts highlighted!just in case, then you should be ok, plus you will obviously be travelling with your passports as ID, wont you? Some countries are more relaxed at border than others but essentially if its EU the same rule applies to all no matter what they may try to tell you.

If it were me I would rather go through the above than apply for a visa and risk refusal stamp relating to a visa document that isnt needed in the 1st place. Just a thought, but in the end its about what you think is best for you personally.

Still - the law is the law.

Sorry to drag this oldish topic back up but I am in a similar position to the OP, my wife to be is Chinese too and we would love to go on weekend trips to Paris etc for example.
We are getting married in China so our marriage certificate (actually a little red book) will be in Chinese. Can we get some kind of official recognition/certification from the Irish authorities to bring with us instead?(assuming of course she is residing legally here with me).

blueythebear

Supercell wrote: »

Sorry to drag this oldish topic back up but I am in a similar position to the OP, my wife to be is Chinese too and we would love to go on weekend trips to Paris etc for example.
We are getting married in China so our marriage certificate (actually a little red book) will be in Chinese. Can we get some kind of official recognition/certification from the Irish authorities to bring with us instead?(assuming of course she is residing legally here with me).

Official Chinese documents come with an official English translation or if they don't, there is certainly a government scheme in China for providing same on all official documents. This should be ok for your purposes...

KP81

Hey OP, I did just this. My wife swapped her stamp 4 spouse of Irish to stamp 4 eu-fam. Bizarrely it does indeed allow you to travel the EU without needing any visas. So far we have travelled to the UK, Denmark, Spain, and Italy without needing a visa. There is a catch though which is that there isn't a set procedure for swapping the stamps. To get the stamps changed I got a UK passport (most Irish can get through Downing St declaration) and found a friendly county Garda who changed the stamps over on the spot. Applying through Burgh Quay will take 6 months:(.

It's worth asking at the airport desk of Ryanair/Aerlingus whether they treat stamp 4 as stamp 4 eu-fam as they are the ones who will prevent you boarding a flight. If they say its ok (usually you need her Irish residency card and a copy of marriage cert) I doubt you'd be stopped on entry to another EU country. Immigration officers generally don't know the difference between the stamps and if you quote a bit of EU regulation and have a copy of the Freedom of Movement Directive in the language of your destination they will let you in even if they make a bit of fuss.

walrusgumble

Supercell wrote: »

Sorry to drag this oldish topic back up but I am in a similar position to the OP, my wife to be is Chinese too and we would love to go on weekend trips to Paris etc for example.
We are getting married in China so our marriage certificate (actually a little red book) will be in Chinese. Can we get some kind of official recognition/certification from the Irish authorities to bring with us instead?(assuming of course she is residing legally here with me).

In addition, when in China, go to the your national Embassy and get a document to confirm that the Irish authorities will recongise the marriage under your countries laws

walrusgumble

blueythebear wrote: »

Official Chinese documents come with an official English translation or if they don't, there is certainly a government scheme in China for providing same on all official documents. This should be ok for your purposes...

Ye it comes in a white bookelet type of document.

Delko

Hi KP81,

That information is very useful. Thanks a lot for posting it.

I would be really interested in trying the same approach.

I was not aware that an Irish citizen can change their Irish passport to a British one under the Downing Street Declaration.

Is this easy to do? What exactly is required? And does it change your Irish citizenship or does it affect your travel requirements (e.g. applying for a Chinese visa to visit China etc?)?

How exactly does the changing of stamps on your wife’s visa work? Was this done at your local Garda station?

This is the best piece of news that I heard in ages, especially after the dismal news regarding NAMA and the baking crisis today.

Thanks very much,

Paul

walrusgumble

Downing Street 1993? Do you mean the Good Friday/Stormount Agreement?

Bear with me (looking from the point of view of southerners)


As ye know, when the Irish Free State ceased to be part of the United Kingdom in 1922, no specific problem of nationality existed as we were a dominion.

From 1922 to 1935 the effective law on nationality in the Irish Free State was based on common law and the British Nationality and Status of Aliens Act 1914 which remained in force as a pre-1922 statute that had not been repealed

In 1935, the Irish Free State created a local citizenship with the passage of the Irish Nationality and Citizenship Act 1935, which came into force on 10 April 1935.

The 1935 Act repealed all British nationality legislation under Irish law. However, citizens of Ireland did not cease to be British subjects in British law until the coming into force of the British Nationality Act 1948 on 1 January 1949.

The United Kingdom Parliament passed the British Nationality Act 1948, which created the status of Citizen of the United Kingdom and Colonies as dominions liked Canada agreed to crerate their own citizenship. Because of Ireland's impending departure from the Commonwealth in 1949,a special provision was made for the retention by certain Irish citizens of the status of British subject, without being citizens of any Commonwealth member state.

As a result of the 1948 Act, Irish citizens ( or citizens of Éire,grrr) lost British subject status automatically on 1 January 1949 if they did not acquire citizenship of the UK & Colonies or that of another Commonwealth country, notwithstanding that Ireland did not cease to be one of His Majesty's dominions until 18 April 1949.

However, section 2 of the Act allowed certain Irish citizens who were British subjects before 1949 to apply at any time to the Secretary of State to remain British subjects. The applications had to be based on:

previous Crown service under the United Kingdom government;
possession of a British passport; or
associations by way of descent, residence or otherwise with the United Kingdom or any Crown colony, protectorate, UK mandated territory or UK trust territory.

No provision was made for the retention of British nationality by Irish citizens born in the Republic of Ireland after 1948. British subject status, as distinct from citizenship of the UK & Colonies, was not transmissible by descent.

For the purpose of the 1948 legislation, the United Kingdom was defined based on its post-1922 borders. Hence, birth in the Republic of Ireland before 1922 was not sufficient in itself to confer UK & Colonies citizenship. Persons born in the Republic of Ireland before 1949 became Citizens of the UK & Colonies by descent on 1 January 1949 if they had a father born in the United Kingdom or a place which was a colony at that date (provided father was married to the person's mother).

In common with those from the Commonwealth, Irish citizens resident in the United Kingdom, whether they held British subject status or not, were entitled to apply for registration as a citizen of the UK & Colonies after one year's residence. By the 1970s this time period had increased to five years.

The Ireland Act 1949 came into force on 18 April 1949, and effectively recognised the withdrawal of the Republic of Ireland from the Commonwealth, which had been effected by the Irish parliament's Republic of Ireland Act 1948. The 1949 Act legislated that despite withdrawal from the Commonwealth, Irish citizens would continue to be treated on a par with those from other Commonwealth countries instead of being treated as aliens in the United Kingdom (happy days, considering the craic during WW2).

Section 5 of the 1949 legislation conferred Citizenship of the UK and Colonies on persons meeting all of the following criteria:

born in the Republic of Ireland before 6 December 1922; and
domiciled outside the Republic of Ireland on that date; and
ordinarily resident outside the Republic of Ireland from 1935 to 1948; and
who had not registered as an Irish citizen under Irish legislation.
Such persons would generally be British citizens today if still alive.


The British Nationality Act 1981, in force from 1 January 1983. Section 31retained the facility for those born in the Republic of Ireland before 1949 to register as British subjects provided that Irish citizens, in common with those from the Commonwealth, would be required to apply for naturalisation as British citizens rather than registration after five years residence in the UK (or three years if married to a British citizen). British subjects retained the right to apply for registration as a British citizen after 5 years residence in the UK.

As a result of the above, there was generally no special access to British citizenship for Irish citizens. The facility for those born before 1949 to reclaim British subject status does not confer British citizenship, although gives an entitlement to registration as such after 5 years in the UK.

Irish citizens seeking to become British citizens are usually required to live in the UK and become naturalised after meeting the normal residence and other requirements, unless they can claim British citizenship by descent from a UK born or naturalised parent.

Situation with the north was a wee bit different

Freddie77

I would appreciate some info if any one has. I am married to an EU citizen from Austria, but we are both living in Ireland. I have an EU Fam Stamp 4 in my passport. We would like to go to another EU country just for a 10 day holliday. Would I be able to visit any other EU country on presenting my EU Fam stamp4 or do I need any other documentation?

walrusgumble

Freddie77 wrote: »

I would appreciate some info if any one has. I am married to an EU citizen from Austria, but we are both living in Ireland. I have an EU Fam Stamp 4 in my passport. We would like to go to another EU country just for a 10 day holliday. Would I be able to visit any other EU country on presenting my EU Fam stamp4 or do I need any other documentation?

Ireland is not part of the Schengen so you might have to apply for an entry visa to enter country of destination, depending on whether or not you need one (eg Americans don't tend to need one, Nigerians or Pakistani often do) Speak to the embassy of the country that you wish to visit with the misses. You should not have to pay for the visa and you should have little or no problems getting it.

To avoid hassle when travelling, with your spouse. Only really need yer passports, might be handy to have a copy of marriage cert and letter from dept granting you the stamp 4 eu fam. other than that, should be ok

tonymill

Please be careful of the above advice. I'm sure it was written with the best of intentions, but some of it is NOT correct. Not all EU countries will allow visa free entry with an Irish Stamp 4 EU FAM. The EU directive (EU38) is a directive, not a law. Only countries that have enacted legislation to allow this will accept this. You can not travel to the UK and many other EU countries with Stamp 4 EU FAM - You still need to get a visa. The visa is free, for family of an EU citizen, but you still need to get one.

I would advise anyone wishing to travel on a Stamp 4 EU FAM to obtain advice in writing from the relevant embassy. If that advice is positive, print it out and bring it with you, as some border staff may not be aware of this.

walrusgumble

tonymill wrote: »

Please be careful of the above advice. I'm sure it was written with the best of intentions, but some of it is NOT correct. Not all EU countries will allow visa free entry with an Irish Stamp 4 EU FAM. The EU directive (EU38) is a directive, not a law. Only countries that have enacted legislation to allow this will accept this. You can not travel to the UK and many other EU countries with Stamp 4 EU FAM - You still need to get a visa. The visa is free, for family of an EU citizen, but you still need to get one.

I would advise anyone wishing to travel on a Stamp 4 EU FAM to obtain advice in writing from the relevant embassy. If that advice is positive, print it out and bring it with you, as some border staff may not be aware of this.

Yes sorry, you are correct, completely. I was looking at those who are from non eu countries where certain member states don't require them to have visas. THe directive itself actually does not stop each country from continuing with their requirements for visas. What I should have pointed out, when I said they can enter freely, is that whilst the directive does allow visa requirements, it clearly states that everything should be done to assist the non eu person accompanied with the eu family member to assist them in getting the documents required. It should not, in theory, be a complete barrier or refusual to stop them from entering a certain eu state.

In particular, you are absolutely spot on about getting the answer in writing as sadly, some immigration officers think they can make up the laws as they go along. At least that written answer will help when they rudely inform you, incorrectly, the proper procedure.

However, as you have correctly noted, that is only theory. All member states have being accussed of not correctly transposing the directive in many aspects and many countries do have varying requirements. You absolutely correct to say one should contact the relevant embassies before travelling.

Out of interest, you say "its only a directive and not a law"? you mean the Schegen Directive or THe 2004 Directive on freemovement?

You mean regulation as in it has complete direct effect without any changes. Isn't a directive every much a source of EU Law? I think cases like Metock , dealing with 2004 directive would find that the directive fully expects one who has signed up already to comply with the directive. THis directive as seen in the preamble still requires countries not to put barriers in the way to free movement. Hasn't most EU countries transposed this directive into national law by now? Ze Germans, French and UK certainly have

tonymill

walrusgumble wrote: »

Yes sorry, you are correct, completely. I was looking at those who are from non eu countries where certain member states don't require them to have visas. THe directive itself actually does not stop each country from continuing with their requirements for visas. What I should have pointed out, when I said they can enter freely, is that whilst the directive does allow visa requirements, it clearly states that everything should be done to assist the non eu person accompanied with the eu family member to assist them in getting the documents required. It should not, in theory, be a complete barrier or refusual to stop them from entering a certain eu state.

In particular, you are absolutely spot on about getting the answer in writing as sadly, some immigration officers think they can make up the laws as they go along. At least that written answer will help when they rudely inform you, incorrectly, the proper procedure.

However, as you have correctly noted, that is only theory. All member states have being accussed of not correctly transposing the directive in many aspects and many countries do have varying requirements. You absolutely correct to say one should contact the relevant embassies before travelling.

Out of interest, you say "its only a directive and not a law"? you mean the Schegen Directive or THe 2004 Directive on freemovement?

You mean regulation as in it has complete direct effect without any changes. Isn't a directive every much a source of EU Law? I think cases like Metock , dealing with 2004 directive would find that the directive fully expects one who has signed up already to comply with the directive. THis directive as seen in the preamble still requires countries not to put barriers in the way to free movement. Hasn't most EU countries transposed this directive into national law by now? Ze Germans, French and UK certainly have

The directive I was refering to was EU38 (Free Movement - Family of EU Citizens).
Many EU countries have still not enacted legislation to match this directive.

The UK definetely haven't.
Italy have.

I presume that with a limited amount of time for new legislation in each country, this is not the highest priority and gets the "long finger" in many EU countries.

Regards
TM

walrusgumble

tonymill wrote: »

The directive I was refering to was EU38 (Free Movement - Family of EU Citizens).
Many EU countries have still not enacted legislation to match this directive.

The UK definetely haven't.
Italy have.

I presume that with a limited amount of time for new legislation in each country, this is not the highest priority and gets the "long finger" in many EU countries.

Regards
TM

Gotcha. But it came into force since 2006 (or deadline for transposition), who would have tought that the EU would allow states to delay on a fundamental piece of legislation regarding one of the core freedoms

blueythebear

walrusgumble wrote: »

Gotcha. But it came into force since 2006 (or deadline for transposition), who would have tought that the EU would allow states to delay on a fundamental piece of legislation regarding one of the core freedoms

If I remember my EU law correctly, if a Directive is past the transposition date, it can be relied upon even if national legislation has not enacted it...

I presume you're referring to Directive 2004/38. That was transposed into Irish law by European Communities (Free Movement of Persons) (No 2) Regulations 2006.

In the Metock case, there were submissions made on the effect of the 2004 Directive by the following States: Czech Republic, Denmark, Germany, Greece Cyprus Malta Netherlands Austria, Finland and the UK so whether they had transposed this directive into national law, I don't know but they were certainly worried enough about the integrity of their borders to make submissions!

walrusgumble

blueythebear wrote: »

Good point. Forgot about that. That being said though, it's really more of an academic point. On a practical level, would you not think it's not more convenient and less messy to proceed under the Immigration Acts anyway? rather than having to make a more involved application under EU Treaty rights? Not to mention the shortened route to Irish citizenship (3 years residence requirement)?

What if you were self employed and had business in other eu state ala Carpetener v UK? ( rights to establishment) His wife got status and he really did not live in another EU state. Look at the Sweedish and Danes, they are only up the road from each other , or even belgium and holland, weekly commuting or dare I say daily commuting to work is possible

acme4242

As regards 4EUFam free movement, here is a useful survey and guide
4EUFam and EU wide travel - the complete guide

The reverse discrimination that Irish Citizens suffer since Dermot Ahern
has been well documented.
https://irelandsreversediscrimination.wordpress.com/2010/02/20/1/


You have more rights in Ireland if you have any other EU nationality except
Irish.
Perhaps the EU or the next Irish administration might restore equality and justice, but don't hold your breath.

Dandelion6

acme4242 wrote: »

The reverse discrimination that Irish Citizens suffer since Dermot Ahern
has been well documented.

Nothing to do with Dermot Ahern. This problem existed going back at least to McDowell's day. Somewhere I have a Parliamentary Question reply from McDowell in which he acknowledges it and vaguely promises to do something about it in the future, but he never did.

acme4242

Dandelion6 wrote: »

Nothing to do with Dermot Ahern. This problem existed going back at least to McDowell's day. Somewhere I have a Parliamentary Question reply from McDowell in which he acknowledges it and vaguely promises to do something about it in the future, but he never did.

The groundwork was started by John O'Donoghue, who removed post-nuptial citizenship from the Irish family. McDowell certainly attacked rights, but the final betrayal was done by Dermot Ahern

And here is how we arrived at this situation.

John O&#8217 wrote: »

Dail Eireann - Volume 536 - 22 May, 2001 - Irish Nationality and Citizenship Bill, 1999 [ Seanad ] : Report and Final Stages.
Minister for Justice, Equality and Law Reform (Deputy John O’Donoghue):

The termination of the post-nuptial citizenship scheme will not adversely affect the position of non-national spouses in terms of their joining their spouses in the State, nor will it adversely affect their right to work.

Select Committee on Justice Equality Defence & Women's Rights - Default 001108
Minister for Justice, Equality and Law Reform (Deputy John O’Donoghue):

The termination of the post-nuptial citizenship scheme will not adversely affect the situation of non-national spouses in terms, for example, of their joining their Irish spouses in this State. There are well established immigration procedures which secure the admission of non-national spouses of Irish nationals

The present immigration arrangements recognise the special position of non-national spouses of Irish citizens. Such spouses, regardless of their nationality, There are no immigration limitations operating to inhibit non-national spouses seeking to come to the State.

In the immigration and residence Bill which is being drafted in the Department at present to replace the entirely outdated and inadvisedly named Aliens Act and its associated orders with a modern and sensible code of immigration law, the immigration status of non-national spouses of Irish citizens will be reaffirmed.

He misled, lied and after came the final betrayal

Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): wrote:

Marriage to an Irish national does not confer any automatic right to enter to reside in the State solely on that basis.

But if you are British, French, Romanian or any other EC nationality living in Ireland, except Irish, you have an automatic right. Based on EU Directives 68/360, 73/148, 90/365 and 2004/38, and confirmed by the European Court of Justice.

Dermot Ahern specifically went out of his way to attack genuine Irish married families. Other EU states e.g. Italy ensure their own citizens have at least equal rights. When Dermot Ahern was faced with the choice, he choose to attack Irish Citizens rights and implement reverse discrimination. He didn't need to do it,

If you want to read how other EU states avoid reverse discrimination, here is a quick study of their legislation.
https://irelandsreversediscrimination.wordpress.com/2010/02/28/how-other-eu-states-avoid-or-create-reverse-discrimination/

Italy avoided reverse discrimination when they transposed EU directive 2004/38/EC into National Law Article 23 of 30/2007 which says “The provisions of this Legislative Decree, if more favourable, apply to the families of Italian citizens”. In Italian “Le disposizioni del presente decreto legislativo, se più favorevoli, si applicano ai familiari di cittadini italiani non aventi la cittadinanza italiana”

Art. 23.
Applicabilita' ai soggetti non aventi la cittadinanza
italiana che siano familiari di cittadini italiani
1. Le disposizioni del presente decreto legislativo, se piu'
favorevoli, si applicano ai familiari di cittadini italiani non
aventi la cittadinanza italiana.

Dermot Ahern has removed doubt in his 2010 IMMIGRATION, RESIDENCE AND PROTECTION BILL
Note this applies to Irish family, not to other EU citizens family who maintain a legal right.

IMMIGRATION, RESIDENCE AND PROTECTION BILL 2010 by Dermot Ahern wrote:

7.—For the avoidance of doubt, the fact that a foreign national
seeking to enter into or be present or remain in the State is married,
or related by marriage, to a particular person does not, of itself,
create any entitlement for that foreign national to be granted a visa,
entry permission or residence permission, or have a residence per-
mission renewed under this Act.

Marriage itself not to create immigration advantage.

Dandelion6

acme4242 wrote: »

but the final betrayal was done by Dermot Ahern

These betrayals were also done by Michael McDowell. He was the one who brought in the original IRP Bill which also stated (Section 94) that marriage to an Irish citizen did not confer an automatic right of residency. In fact it went even further than the current bill and required Irish citizens (and others) marrying non-EU citizens to get Ministerial permission first.

I'm no fan of Dermot Ahern, but this is government policy, not just his.

acme4242

Dandelion6 wrote: »

These betrayals were also done by Michael McDowell. He was the one who brought in the original IRP Bill which also stated (Section 94) that marriage to an Irish citizen did not confer an automatic right of residency. In fact it went even further than the current bill and required Irish citizens (and others) marrying non-EU citizens to get Ministerial permission first.

I'm no fan of Dermot Ahern, but this is government policy, not just his.

Well yes, I do recall them bragging on an RTE interview how they shared the same goals.
Indeed McDowell can get some credit, before McDowell “Certain non-nationals where exempted from the registration requirement. The exemptions include children under 16 and the female spouses or widows of Irish citizens”

He now gets the credit for removing the rights from an Irishmans widow and wife. Also for introducing his 'Fields of Athenry legislation allowing him to deport the spouse of Irish Citizens for any criminal record. With certain irony as well, he signed in EU directive 2004/38/EC, the EU directive, which gives EU families automatic rights of free travel and family reunification. The same rights Irish families had earlier, but are now completely removed under the smoke screen of abuse.

Dermot Ahern is personally responsible, unless he is re-using his bailout excuse that it was all done by an incompetent public servant.

An Irish government policy of reverse discrimination against their own citizens is absurd. This has been implemented with no proper explanation or justification why, no Dail approval, the only excuse given by Dermot Ahern was that its what the British did.
As the teachers would say in school to such an excuse with derision "If the British jumped off a cliff, would Dermot Ahern jump as well"

But don't let Dermot Ahern be a distraction, the focus should be EU treaty rights, and the denial of equivalent rights to Irish Citizens.

Why should an Irish family not have visa free travel. Whereas a British Citizens family
living in Ireland is given a plastic card, a 4EUfam card, that means they don't need any EU
visas, or any Irish re-entry visa.
For the Irish family to get a Irish re-entry visa you need to head to the GNIB at Burgh Quay at 2am in the morning and queue all night.
This is the family who already have a GNIB issued resident permit. But this is not accepted by GNIB at the airport, GNIB airport want a visa, as an Irish resident permit somehow is no good for entry into Ireland.

Ben1981

Hi Guys,

Here is the short story:

I am non eu (india) and my wife is eu national (pole). We lived 5 years together in UK from Dec 2005 to Jan 2010 . Then we got married in april 2010 in Poland and I applied for family visa (C type) and came to dublin to join my wife.

07-01-2011 - EU 1 Application send.
21-01-2011 - Got reply for registeration with Garda.
22-01-2011 - Got stamp 4 for 6 months.


And on the reply of 21/01/2011, the DOJ asked to stamp our marriage certificate from poland and ofcourse their useless demand......... of PRBT letter. We already reg with PRBT and expecting the letter by end of feb 2011.

Now can some one explain me why they need to apositle the marriage certificate when the marriage certifcate issued within in EU country?? DOJ are nutts or intentionally trying to delay the proceedure?

PLEASE SHARE SOME LIGHTS ON THIS MATTER although we have already sent the marriage certifcate to warsawa for its apostile. ( 2 weeks to process)



Many thanks.
Ben

PS: Hague Conference : No documents needs to apostile if its issued within EU state.

dermot_sheehan

Incorrect about abolishment of requirement for legalisation.

It only applies to EU Member states that have signed the EC Convention on abolishment of legalisation of public documents. As far as a I know only about 4 have signed, Ireland, Italy, France, and maybe belgium, not poland.

johnnyskeleton

Ben1981 wrote: »

Hi Guys,

Here is the short story:

I am non eu (india) and my wife is eu national (pole). We lived 5 years together in UK from Dec 2005 to Jan 2010 . Then we got married in april 2010 in Poland and I applied for family visa (C type) and came to dublin to join my wife.

07-01-2011 - EU 1 Application send.
21-01-2011 - Got reply for registeration with Garda.
22-01-2011 - Got stamp 4 for 6 months.


And on the reply of 21/01/2011, the DOJ asked to stamp our marriage certificate from poland and ofcourse their useless demand......... of PRBT letter. We already reg with PRBT and expecting the letter by end of feb 2011.

Now can some one explain me why they need to apositle the marriage certificate when the marriage certifcate issued within in EU country?? DOJ are nutts or intentionally trying to delay the proceedure?

PLEASE SHARE SOME LIGHTS ON THIS MATTER although we have already sent the marriage certifcate to warsawa for its apostile. ( 2 weeks to process)

The Department of Justice (rightly or wrongly) takes the view that you bear the onus of proving that you comply with the regulations and that it is up to you (not them) to provide the necessary documentation.

For example, there is no reason in theory why the Department of Justice cannot have access to revenue's database to see whether someone is employed or registered as self employed. However, instead of taking that relatively sensible step, they insist on the person obtaining their documents themselves and forwarding them on.

It's a silly system, but that is how Ireland is set up. Be prepared for much more of that kind of nonsense while you are here. We are well behind the UK in terms of bureaucratic efficiency.

acme4242

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0034:EN:HTML

Zambrano judgment On those grounds, the Court (Grand Chamber) hereby rules: Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

Background reading, EFFECT OF THE ZAMBRANO DECISION ON RIGHTS OF RESIDENCY AND REVERSE DISCRIMINATION IN IRELAND

Under EU law there does not appear to be a logical justification to require that a Member State should protect and uphold the rights of union citizens who have exercised their right of free movement, whilst at the same time failing to afford the same protection to a union citizen of that Member State who has not exercised their rights under free movement. There would appear to be a gap for discussion in Ireland in relation to how, what is known as ‘reverse discrimination,’ has been a result of the implementation of EU Law into domestic legislation. It certainly appears to be at odds with the equality guarantee under Article 40 of the Constitution. Earlier last month in his somewhat radical opinion the Advocate-General of the Grand Chamber of the European Court of Justice held that physical movement to a Member State other than the Member State of nationality is not required before residence rights as a citizen of the Union can be invoked. In other words, a right of residence in a Member State is based on citizenship of the Union, a free standing right alongside the concept of free movement between Member States. Such rights derive directly from the Treaty on the European Union and Article 18 of the Treaty of course provides for the prohibition of discrimination based on nationality and should therefore apply to all citizens of the Union. For reference purposes the case was Ruiz Zambrano (European Citizenship) [2010] EUECJ C-34/09 (30 September 2010). If the Court of Justice accepts the Advocate-General’s opinion, it shall be accepting a significant extension of EU law as the Regulations governing rights of residence will then apply to nationals of the Member State. Until now, the Court has said that EU law on rights of residence does not apply where the Union citizen is living in their own country and has no connection with any other European Union state. If the Court accepts his argument, then Member State nationals may be able to avail of rights under EU law, even if they have never travelled to any other Member States. Such further rights would provide the same rights to family union as other EU nationals: to have their spouse and children aged under 21 (or dependant) living with them. The issue of reverse discrimination has indeed been a reality for many Irish citizens who see a clear divide between how they and their family members are treated in comparison to family members of EU nationals who have exercised their right to move to Ireland as another Member State. Complications such as proof of ‘dependency’ and so-called ‘purely internal situations’ have been cited in dealing with such cases involving Irish citizens. - Sarah McCoy

blueythebear

acme4242 wrote: »

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0034:EN:HTML Background reading, EFFECT OF THE ZAMBRANO DECISION ON RIGHTS OF RESIDENCY AND REVERSE DISCRIMINATION IN IRELAND

That's a huge decision. And a sensible one. I think that previously, where a child had EU Citizenship and the parents were non-EU, the parent had a right to reside only (not to work) and had to apply to the MInister who had discretion to refuse (Chen Case).

After this, the parent has an automatic right to remain and to work under EU Law meaning that parents of Irish Citizens are no longer able to be deported unless under the usual EU Law derogations of public policy, security, etc.

Dandelion6

Massive decision, effectively it overturns the Supreme Court's L&O judgment. Expect huge ructions from the likes of Áine Ní Chonaill.

Personally I think it's welcome though, and sensible.

Northumberland

Has anybody any recent experience of waiting times for return of documents after submission of Form EU1 - EU Treaty Rights application for non EU spouse?

The INIS website says documents (passports, marriage cert) are returned within 4 weeks. I asked about waiting time by email and got the reply - documents should be returned in 3 to 5 weeks. I submitted my application on June 18th, after 5 weeks, I emailed again to say 5 weeks had passed, any update. I was then told - it could take 6 to 8 weeks - double the time stated on the website. It seems to be a moving target. Impossible to make any detailed enquiries because they do not give you a reference number until they return the documents.