Under European Union Law, citizens of the European Economic Area (EEA) which encompasses the 28 EU member states, Iceland, Norway, and Liechtenstein, together with citizens of Switzerland (which is not in the EEA) are entitled to move and reside freely in EU member states other than the member state of which they are a national. Their family members are also entitled to move and reside freely with them on this basis.
These rights are set out in Council Directive 2004/38 EC (aka the Citizenship Directive) and are transposed into Irish law under the European Communities (Free Movement of Persons) Regulations 2015.
In Ireland EU Treaty Rights law does not apply to Irish citizens living in Ireland. It only applies to EEA nationals of other member states who are moving to or residing in Ireland, for example a French national who moves to and resides in Ireland.
Article 3 of the Citizenship Directive/Regulation 3(1) of the Free Movement of Persons Regulations sets out to whom the laws apply – that is EU citizens who move to or reside in a Member State other than that of which they are a national, and their family members who accompany or join them.
Family members fall into two different categories: “Qualifying
Family Members” and “Permitted Family Members”.
A Qualifying family member is defined as:
- the Union citizen’s spouse or civil partner,
- a direct descendant of the Union citizen, or of the Union citizen’s spouse or civil partner and is – a). under the age of 21, or b). a dependent of the Union citizen, or of his or her spouse or civil partner, or
- a dependent direct relative in the ascending line of the Union citizen or of his or her spouse or civil partner.
A Permitted family member is defined as:
(a) irrespective of his or her nationality, is a member of the family (other than a qualifying family member) of a Union citizen to whom paragraph (2) applied and who in the country from which the person has come –
- is a dependant of the Union citizen,
- is a member of the household of the Union citizen, or,
- on the basis of serious health grounds strictly requires the personal care of the Union citizen,
Or (b) is the partner with whom a Union citizen has a durable relationship, duly attested.
The Rights of Qualifying Family Members are automatic, whilst Permitted Family Members must apply to be recognised as a Permitted Family Member in order to become beneficiaries of the Free Movement Laws.
Citizens of the EEA can reside in another Member State of which they are not a national without restrictions for up to three months. After three months, the EEA citizen must comply with certain requirements to continue to benefit from EU free movement laws and must be one of the following:
- A worker or,
- A Self-employed person or,
- Have sufficient resources for themselves and their family member not to become a burden on the State, with comprehensive sickness insurance or
- Enrol in an educational establishment accredited or financed by the State for the principal purpose of following a course of study there and have comprehensive sickness insurance in respect of himself or herself and his or her family members and, by means of a declaration or otherwise, satisfies the Minister that he or she has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State.
The above are commonly referred to as the EU citizen exercising their EU Treaty Rights. In order for a family member to qualify for residence in the State, the EEA national must satisfy one of the above.
In order to move to the State, non-EEA national family members have the option of applying to accompany the EEA national to the State, or joining the EEA national in the State. Visa required nationals must apply for a visa to enter. This visa application is free of charge and should be processed by way of an accelerated process.
Non-visa required nationals do not need a visa to enter the State and should notify the immigration officer at the point of entry to the State that they are joining or accompanying their EEA national family in order to seek permission to enter. The EEA national does not need to be exercising their EU Treaty rights in the State in order for the family member to be granted a visa or permission to enter the State
If a family member wishes to reside in the State with the EEA national, then they must apply for a residence card following entry. If successful, they will be issued with a residence card allowing them to reside in the State for a five-year period. This also allows them to work, to study, to travel into and out of the State freely along with other benefits.
Applications for a residence card must be processed by law within a period of six months from receipt of the application. The relevant application forms upon which their applications should be based are a Form EU1 for a Qualifying Family Member and Form EU1A for a Permitted Family Member.
After five years of residency EEA nationals and their family members may apply for a Permanent Residence Card provided that they have resided in the State during the five-year period in conformity with the terms of the Citizenship Directive/Free Movement of Persons Regulations. Many individuals will also apply for Irish citizenship at this point. Applications for a Permanent Residence Card are submitted on a Form EU3 to the Department of Justice and Equality.
The Citizenship Directive and Free Movement of Persons Regulations allow for the retention of residence by non-EEA family members on a personal basis in the event of divorce, annulment of marriage or termination of a registered partnership, or in the event of death, in certain circumstances. Applications for retention of a residence card are submitted on a Form EU5 to the Department of Justice and Equality.