EU Treaty Rights

antgal23

Hi folks

I have 2 p/ports: Irish and UK.

I want to bring my Non EU wife to Ireland. We have 3 kids - all Irish p/port holders.

I understand it could take up to 1 year waiting if I apply for Fam Reunification as an Irish citizen.

Does a/one know if I could use my UK passport and exercise my Treaty Rights? In effect, cutting down the waiting time

If so, what would be the advs and disad ?

Thanks

Scofflaw

antgal23 wrote: »

Hi folks

I have 2 p/ports: Irish and UK.

I want to bring my Non EU wife to Ireland. We have 3 kids - all Irish p/port holders.

I understand it could take up to 1 year waiting if I apply for Fam Reunification as an Irish citizen.

Does a/one know if I could use my UK passport and exercise my Treaty Rights? In effect, cutting down the waiting time

If so, what would be the advs and disad ?

Thanks

Not sure in your individual case, obviously, and am not a lawyer, but there was a CJEU decision on this a few years back: http://ireland-living.blogspot.ie/2008/07/non-eu-spouses-of-eu-citizens-in.html

And that does look like your wife would be entitled to join you straight away, particularly if she has already been legally resident in the UK. However, I would imagine it would be worth checking with the Immigrant Council of Ireland if you haven't already done so. The European Commission also have a lawyer who might be able to help:

- Providing a Your Europe Adviser (solicitor: Siobhan Duffy) who is available to give advice and information on citizens’ rights in the European Union. Ms. Duffy is available for consultation sessions for a half day each month. You can make an appointment for the following dates.

Tuesday, 25 February (morning)
Monday, 24 March (morning)
Friday, 25 April (morning)
Monday, 19 May (morning)
Friday, 20 June (morning)
Friday, 18 July (morning)

http://ec.europa.eu/ireland/about_us/index_en.htm

About the worst I could see as a drawback (and, again, not a lawyer) might be that you wind up being listed as a UK citizen in official terms here, and that's not generally a big headache (although if the UK votes to leave the EU...).

Is it possible to do both?

cordially,
Scofflaw

antgal23

thanks Scofflaw for reposting my Thread in the right place and for the useful info - Im home in June so I could try to meet Siobhan in July

The other thing that may complicate things is s/thing which we didnt know about.

My wife entered the UK (2004) on a student visa and as she wanted to continue studying she reapplied (2005) for a new visa whilst still there. (I hadnt met her until after this) We got married in 2006.

When we left the UK in 2008 to move abroad and we applied for a UK tourist visa in 2009 , they refused, saying that my wife should have left the UK in 2005 and reapply for a UK student from her country of origin.

a total mess tbh and on we didnt see coming as they were granting her visa extensions whilst there

on subsequent irish tourist visas we have explained that she was denied a UK tourist visa but nothing was ever said

Scofflaw wrote: »

Not sure in your individual case, obviously, and am not a lawyer, but there was a CJEU decision on this a few years back: http://ireland-living.blogspot.ie/2008/07/non-eu-spouses-of-eu-citizens-in.html

And that does look like your wife would be entitled to join you straight away, particularly if she has already been legally resident in the UK. However, I would imagine it would be worth checking with the Immigrant Council of Ireland if you haven't already done so. The European Commission also have a lawyer who might be able to help:



http://ec.europa.eu/ireland/about_us/index_en.htm

About the worst I could see as a drawback (and, again, not a lawyer) might be that you wind up being listed as a UK citizen in official terms here, and that's not generally a big headache (although if the UK votes to leave the EU...).

Is it possible to do both?

cordially,
Scofflaw

Jim2007

antgal23 wrote: »

Does a/one know if I could use my UK passport and exercise my Treaty Rights? In effect, cutting down the waiting time

I very much doubt it, as dual citizen you can not normally claim to be anything other than a citizen of the country when in the country.

I may case I can no longer make use of Irish consular services or claim exemption from Swiss citizenship obligations by virtue of my Irish passport and so on.

Pro Hoc Vice

antgal23 wrote: »

Hi folks

I have 2 p/ports: Irish and UK.

I want to bring my Non EU wife to Ireland. We have 3 kids - all Irish p/port holders.

I understand it could take up to 1 year waiting if I apply for Fam Reunification as an Irish citizen.

Does a/one know if I could use my UK passport and exercise my Treaty Rights? In effect, cutting down the waiting time

If so, what would be the advs and disad ?

Thanks

There is a case on this exact point, except in reverse http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0434:EN:HTML

The basic point in McCarthy was she could not get the benefit of EU treaty rights because she never really lived in Ireland as she had lived all her life in UK.

There are a number of issues you bring up a good solicitor in Ireland could in reality sort them out, it would seem to me the UK are wrong in what they told you but that would be for a uk solicitor to Dort out.

It is worth noting that under the new guidelines spousal decision to be granted stamp 4 should be made in 6 months the same time frame for EU treaty rights.

Pro Hoc Vice

Scofflaw wrote: »

Not sure in your individual case, obviously, and am not a lawyer, but there was a CJEU decision on this a few years back: http://ireland-living.blogspot.ie/2008/07/non-eu-spouses-of-eu-citizens-in.html

And that does look like your wife would be entitled to join you straight away, particularly if she has already been legally resident in the UK. However, I would imagine it would be worth checking with the Immigrant Council of Ireland if you haven't already done so. The European Commission also have a lawyer who might be able to help:



http://ec.europa.eu/ireland/about_us/index_en.htm

About the worst I could see as a drawback (and, again, not a lawyer) might be that you wind up being listed as a UK citizen in official terms here, and that's not generally a big headache (although if the UK votes to leave the EU...).

Is it possible to do both?

cordially,
Scofflaw

That decision is a totally different matter the question is can a dual national pick his nationality so as to exercise treaty rights the best answer is maybe. It will really depend on the facts of the case as in McCarthy.

Scofflaw

Jim2007 wrote: »

I very much doubt it, as dual citizen you can not normally claim to be anything other than a citizen of the country when in the country.

I may case I can no longer make use of Irish consular services or claim exemption from Swiss citizenship obligations by virtue of my Irish passport and so on.

That's true - you can't evade citizenship obligations as long as you hold citizenship. If you're a dual national you can give up the citizenship and the obligations with it, but as long as you do hold citizenship, you have the obligations.

Not sure, though, that that's applicable here, since this is more of a case of two possible routes to the same thing.

cordially,
Scofflaw

Scofflaw

infosys wrote: »

That decision is a totally different matter the question is can a dual national pick his nationality so as to exercise treaty rights the best answer is maybe. It will really depend on the facts of the case as in McCarthy.

Sorry - it wasn't intended as an answer to whether one can pick and choose, but in respect of an obligation for a non-EU citizen spouse of an EU citizen to have resided in another EU country first.

I'm kind of assuming that practically speaking one can pic and choose, because that's pretty much my experience as a dual national. Generally if you go in to some branch of the Irish civil service and state you're a UK national, with proof, they won't look any further than that.

cordially,
Scofflaw

Pro Hoc Vice

Scofflaw wrote: »

Sorry - it wasn't intended as an answer to whether one can pick and choose, but in respect of an obligation for a non-EU citizen spouse of an EU citizen to have resided in another EU country first.

I'm kind of assuming that practically speaking one can pic and choose, because that's pretty much my experience as a dual national. Generally if you go in to some branch of the Irish civil service and state you're a UK national, with proof, they won't look any further than that.

cordially,
Scofflaw

You will see that the case I posted shows very clearly that for treaty rights you can not just pick the most advantageous citizenship (a dual UK, Irish who other than holidays never lived in ireland) for EU treaty applications.

It had been well settled law that the non EU spouse can meet the EU spouse anywhere and there is no longer a requirement that the Non EU spouse either lived in the other eu country before or joins the EU spouse here from another country.

Scofflaw

infosys wrote: »

You will see that the case I posted shows very clearly that for treaty rights you can not just pick the most advantageous citizenship (a dual UK, Irish who other than holidays never lived in ireland) for EU treaty applications.

Yes, I think the principle which settles the matter would apply here, even if the OP has lived in both countries. In each case, he has an unconditional right of residence by virtue of citizenship, and in fact the point is that this more advantageous citizenship (for him personally) overrides and precludes the less advantageous EU treaty right.

infosys wrote: »

It had been well settled law that the non EU spouse can meet the EU spouse anywhere and there is no longer a requirement that the Non EU spouse either lived in the other eu country before or joins the EU spouse here from another country.

The settlement of it in Ireland appears to be relatively recent at least.

cordially,
Scofflaw

Pro Hoc Vice

Scofflaw wrote: »

Yes, I think the principle which settles the matter would apply here, even if the OP has lived in both countries. In each case, he has an unconditional right of residence by virtue of citizenship, and in fact the point is that this more advantageous citizenship (for him personally) overrides and precludes the less advantageous EU treaty right.

The settlement of it in Ireland appears to be relatively recent at least.

cordially,
Scofflaw

In relation to the citizenship it's a matter of fact and degree. If his main and reality only citizenship is UK then he can exercise treaty rights if on the other hand he has only lived Ireland then he can not exercise treaty rights just by virtue of having a uk passport. If a person is NI it would make it even more complex. But the only person who could advise is an immigration solicitor advised of all the facts.

It only became an issue in ireland in the mid 2000's with Ireland's implementation of directive 2004/34/EC by SI in 2006, a person called Metock http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008CA0127:EN:NOT (and many others) applied for treaty rights in relation to non eu spouse. Ireland refused based on 2006 regulations, the matter quickly went to court and in 2008 ended up in the Dutopean Court of Justice, who said ireland was clearly wrong. Ireland then introduced a new SI in 2008 so the issue lasted about 2 years before being fixed.

antgal23

ok, but what if I have never lived in the ROI?

I was born in NI , and lived there until I was 24. RO Ireland recognises NI as part of the UK if I moved back to NI and applied from there, how would that play out?

Pro Hoc Vice

antgal23 wrote: »

ok, but what if I have never lived in the ROI?

I was born in NI , and lived there until I was 24. RO Ireland recognises NI as part of the UK if I moved back to NI and applied from there, how would that play out?

Your question is clearly answered in my posts and the case I quoted. In my opinion your citizenship is UK if you have always had both passports used only your UK one and never lived in the Republic. As the case sets out its a question of fact and degree.

funnystory

Hi Guys,

I have Stamp 4 EUFAM.my wife (EU national) has to renew her passport,my question is ,do I have to update GNIB with new paspport number , will I still be able to travel around Europe without Visa.

Any help will be highly appreciated .

Thanks.