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EU Treaty Rights2022-08-03T16:08:42+00:00

What are EU Treaty Rights

Citizens of the European Union and their family members are entitled to exercise free movement within the territory of the member States of the EU.  Directive 2004/38/EC is implemented in Ireland by 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 i.e. nationals of other EU member States, citizens of Norway, Lichtenstein, Iceland along with Switzerland,  who are moving to or residing in the Republic of Ireland, for example a French National who moved to and resides in the Republic of Ireland. The six counties of the North of Ireland are under British jurisdiction and therefore are not part of the EU following Brexit.

The 2004 Directive and the 2015 Regulations assign family members  to two different categories: “Qualifying Family Members” and “Permitted Family Members”

Qualifying Family Member – Definition

  1. The Union Citizen’s spouse or civil partner
  2. A direct descendant of the Union citizen or of the Union Citizen’s spouse or civil partner and is:
    1. Under the age of 21 or
    2. A dependent of the Union Citizen or of his or her spouse or civil partner or
    3. A dependent direct relative in the ascending line of the Union Citizen or his or her spouse or civil partner.

A Permitted Family Member is defined as

  1. 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 or who in the country from which the person has come
    • Is a dependent 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
  2. Is the partner with whom a Union Citizen has a durable relationship, duly attested.

Qualifying Family Member versus Permitted Family Member

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.

Free Movement Rights of Family Members of EU Citizens

Citizens of the EEA and Switzerland can reside in another member State of which they are not a national without restrictions for up to three months.  After three months, they must comply with certain requirements in order to continue to benefit from EU free movement laws.  The EU Citizen must be one of the following:-

  1. A worker; or
  2. A self-employed person; or
  3. Have sufficient resources for themselves and their family member not to become a burden on the State with comprehensive illness insurance cover; or
  4. 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/Swiss National must satisfy one of the above.

In order to move to the State, non-EEA National family members have the option of accompanying the EU Citizen to the State or joining the EU Citizen in the State.  Visa required nationals must apply for a visa to enter Ireland.  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 the EU Citizen in order to seek permission to enter.  The EU Citizen does not need to be exercising their EU Treaty rights in the State for the family member to be granted a visa or permission to enter the State. It is sufficient for them to show evidence of intention to exercise their EU Treaty Rights.

Contact Sinnott Solicitors Dublin and Cork today for more information on EU Treaty Rights!

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Application for a Residence Card

If a family member wishes to reside in the State with the EEA National/Swiss Citizen 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 application should be based are a Form EUTR1 for a qualifying family member and a Form EUTR1A for a permitted family member. The forms can be found here.

Successful EU residence cards applicants must then register with the Irish Immigration Authorities who will issue them with their residence card.

Unsuccessful applicants are entitled to have the decision reviewed by way of the review procedure set out in the directive and the regulations (Regulation 25). Reviews must be lodged within 15 working days of the date on the refusal letter on a Form EUTR4.

Application for a Permanent Residence Card and Permanent Residence Certificate

After five years of residency on the initial residence card, EEA/Swiss Citizens who have resided in the State for five years or more in conformity with the Regulations can apply for a Permanent Residence Certificate. Applications for a Permanent Residence Certificate are submitted on a Form EUTR2 application form.

Their third country 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 regulations and the directive.  At this point, many people will apply for Irish Citizenship/Naturalisation in addition to the permanent residence card.  Applications for a permanent residence card are submitted on a Form EUTR3 to the EU Treaty Rights Division of the Department of Justice.

Retention of Residence Applications following Divorce, Death or Departure of EU citizen

The Directive and the Regulations provide for the retention of residence by the non-EEA/Swiss family member on a personal basis in the event of divorce, annulment of marriage or termination of a registered civil partnership or in the event of death and in other certain circumstances.  Applications for retention of residence cards are submitted on a Form EUTR5 to the EU Treaty Rights Division of the Department of Justice. 

Sinnott Solicitors Dublin and Cork receive numerous queries from clients regarding their immigration status when certain unavoidable situations arise affecting their EU Treaty Rights residence permission. This is often the case when a person obtained a residence card to remain in the State on the basis of their marriage to an EEA/Swiss National and that relationship has subsequently  broken down.  When that happens, persons wish to retain their residency on an individual basis as opposed to residency based upon their marriage to an EEA/Swiss National.  Separation can be very difficult, but it can be extremely stressful when combined with the threat of revocation of residency. Other circumstances which would lead to an application for retention of residency would be in the event of the death of the EU citizen or in the event of the EU citizens departure from the State.

The Legal basis for Retention Permission

Directive 2004/38EC  which is given effect in Ireland by the European Communities (Free Movement of Persons) Regulations 2015 (the “Regulations) allows for retention of residence in certain circumstances.  If you have previously been granted a residence card but your circumstances have changed such that:-

  1. The EU Citizen has died or
  2. The EU Citizen has departed from the State leaving the non-EEA National the custodian of minor children who have enrolled in an educational establishment in the State for the purpose of a course of study
  3. Your marriage of civil partnership to the EU Citizen has been dissolved through divorce, annulment or Civil Partnership then you may be entitled to make an application for retention of a residence card.

Death of an EU Citizen – The law on retention of Immigration Permission

In the case of a death of an EU Citizen, the interpretation is clearly more straight forward.  Regulation 9 states that certain criteria must be met in order to avail of the retention permission.  It requires that the  following criteria are met:

  1. an Applicant must have resided in the State with the EU Citizen for at least one year prior to the death of the EU Citizen.
  2. an Applicant must be employed or self-employed in the State or possess sufficient resources to support themselves and any dependents

or

if the EU Citizen’s children are enrolled in education in the State for the purposes of following a course of study, then the child and the parent who has custody of the child will be entitled to reside in the State until the completion of the course of study.

Departure of an EU Citizen – The law on retention of Immigration Permission

In the case of the departure of an EU Citizen from the State, such an application can only be made where there are minor children of the EU Citizen of whom the Applicant has legal custody of in the State.  The basis of that legal custody of minor children must be set out and can be by agreement with the EU Citizen or by Court Order.  When the EU Citizen has departed from the State and his or her children are resident in the State and where those children are enrolled in an educational establishment for the purpose of following a course of study, then the children and the parent who has custody of the child will be entitled to reside in the State until completion of the course of study.

EU Treaty Rights – Retention of Residence if Divorced or Separated  

Divorce obtained while the EEA/Swiss Citizen is exercising free movement rights in the host State does not affect the right of the non-EU Spouse to reside in the host State provided that the marriage has lasted for at least three years with a least one of those years in the host State prior to the divorce proceedings commencing and provided that the non-EU Spouse is not a burden on the State.

Sinnott Solicitors Dublin and Cork have led the way in clarifying the law in this area.  In the case of our client Khalid Lahayani known as Khalid Lahayani .v. Minister for Justice and Equality 2013 IEHC176, the Irish High Court held that the Directive must be interpreted expansively to provide for the occasions where marriages and civil partnerships do not work out and where the EU Union worker simply deserts and quits the host State before divorce proceedings are contemplated.

The case is clearly intended to protect non-EU Spouse from having their residence revoked and being expelled from the State because their legal status in the State has been altered by the breakdown of their marriages and a subsequent application for Divorce.

The court concluded in that case that Directive must be interpreted to allow the non-EU spouse a reasonable time to commence and prosecute divorce proceedings before rights of residence are revoked.

However in a subsequent case Kuldip Singh .v. Minister for Justice and Equality C-218/14 which dealt with the rights of third country nationals and family protection in the context of divorce and retention of EU Treaty Rights, the Court of Justice of the European Union considered whether the non-EU Spouse retained his right of residence where divorce followed after the EU National had left Ireland.

The Court held that Article 13(2) of the Directive meant that divorced third country national’s such as Mr. Singh do not retain a right of residence because the EU Spouse had left the host member state before the commencement of divorce proceedings.  The onus is on the third country national to expeditiously begin divorce proceedings in order to retain their rights of residence which in many ways does not allow a couple a chance for reconciliation.

The Court considered whether a non-EU Citizen retains a right of residence in the host member State during the period before divorce following the departure of an EU Citizen from the host member State.

The Court held that the non-EU Citizen retains their right of residence if, prior to the commencement of the divorce proceedings, the marriage lasted for three years including one year in the host member State.  However, the Court held that the EU Citizen’s departure would have led to the right of residence of the non-EU Spouse lapsing and the subsequent divorce proceedings could not lead to its revival because the Directive refers to “retention” of an existing right of residence but not to the revival of an already lapsed right of residence.  Therefore, the Applicant could only be successful where both spouses had resided in the host member State until the time of the divorce.

In that case, divorce proceedings had been initiated outside of the State after the departure of the EU National and the Court held that the Applicant had lost the right to reside in the host member State.

Incidentally, the Court also concluded that the resources of the non-EU Spouse must be taken into account when determining whether the EU Spouse had sufficient resources.  It was not relevant where the resources came from provided the resources were lawfully acquired.

Where a divorce is bought about as a result of domestic violence the European Court of Justice recently confirmed in the case of X v Belgium (case C-930/19) that when a divorce is bought about due to domestic violence, Article 13 of the Directive may be relied upon, if divorce proceedings were initiated after the EEA/Swiss Citizen left the host Member State, as long as the divorce was initiated within a reasonable time period of the EEA/Swiss Citizens departure.

How to retain your EU Treaty Rights Residence in Ireland after the breakdown of a marriage

There is a lot of confusion in this area. It is now quite clear from the interpretation that has been given to Directive 2004/38EC by the Courts that an Applicant may only apply for retention where there arises Divorce or annulment of marriage to the EU Citizen or annulment or dissolution of civil partnership with EU Citizen.

If a non-EEA national separates from the EEA/Swiss citizen spouse and the spouse continues to reside and exercise their EU Treaty Rights in the State, then the EEA national’s residence rights remain unchanged. They must however notify the Department of Justice of the change in circumstances.

Duration of the Marriage

It is a general requirement in respect of an application for retention of immigration status that the parties have been married for at least three years beforehand with at least one year spent residing in Ireland.

Regulation 10 sets out certain criteria in order to meet a right of residence after divorce or annulment of a marriage or dissolution of a civil partnership.  Apart from the fact that a person is required prior to initiation of the proceedings to have lived for one year in the State and to have had a valid and subsisting marriage for three years all the while the EEEA/Swiss Citizen exercising their EU Treaty Rights in the State at the time that the Decree of Divorce or disillusionment was made, the retention of such rights of residence may also be warranted by particularly difficult circumstances such as the Applicant having been a victim of domestic violence while the marriage or civil partnership was subsisting.

Preparing an application for retention of EU Treaty Rights

It is absolutely essential that an application is presented to the EU Treaty Rights Division of the Department of Justice in a very comprehensive and clear manner.  As Immigration Lawyers, Sinnott Solicitors Dublin and Cork have years of experience in dealing with retention applications.  Every application should outline in detail the following matters:

  1. The Applicant’s immigration history
  2. The Applicant’s employment history and prospects in the State
  3. The Applicant’s full relationship history with the EEA National
  4. The character and conduct of the Applicant
  5. A very full and comprehensive set of documents to support the above an analysis and outline of the law in the area
  6. Legal submissions in support of the application
  7. Completed form EUTR5

Activities of the Applicant to become eligible to apply for retention 

If an Applicant wishes to retain a residence card following the death of the EU Citizen or the divorce, annulment or dissolution of a marriage or civil partnership with an EU Citizen and subsequently wishes to obtain a permanent residence card, the Applicant must be involved in one of the following categories:-

  1. Employment
  2. Self-employment
  3. Residing with sufficient resources which means that the Applicant has sufficient resources to maintain themselves and any dependents in the State and also holds comprehensive health insurance for the Applicant and any dependents.  That is to ensure that the Applicant or the Applicant’s dependents do not become an unreasonable burden on the social assistance scheme of the State.

Successful Application for Retention

In the event that an Applicant is successful in the retention application, then they will be permitted to retain the residence card and/ or apply for a permanent residence card depending on the circumstances.

When making an application for retention of EU Treaty Rights, we ask the Department of Justice to grant a temporary permission to reside in the State to the applicant whilst their application is pending if their residence card has already expired. The temporary permission is granted for a six-month duration which may be extended until the outcome of the application.

Application Times

At present the Department of Justice state that the application could take up to six months.  However, that in our experience is not the case.  We are aware of many retention applications where those applications have taken a number of years to process.

Delay in processing Retention Applications

Clearly a delay as outlined above constitutes an unreasonable and lengthy delay in processing retention applications. In the event that the delay in processing an application is unreasonable and disproportionate to any object to be achieved in terms of public policy or security, it may lead to the requirement for a judicial review application before the High Court in order to compel the EU Treaty Rights Division to process the application.

Changes in circumstances

Sometimes the Applicant’s circumstances change after the retention application is made.  The onus is on each Applicant to keep the Department of Justice updated regarding their circumstances and to submit any relevant supporting documents in relation to new circumstances.

If you are a non-EU citizen married to or in a civil partnership with an EEA/Swiss citizen and if you are concerned about your immigration status because the marriage has broken down or you have separated, Sinnott Solicitors Dublin and Cork would be happy to assist you in relation to your immigration case. Please do not hesitate to contact us at 014062862 or info@sinnott.ie.

Revocation of a Residence Card

The Minister for Justice is entitled to revoke a residence card when

the holder is no longer entitled to it, for example where the EEA/Swiss citizen has left the State, a relationship has broken down, the EEA/Swiss citizen is no longer working and does not retain worker status or where there are allegations of fraud or abuse against the applicant, such as a marriage of convenience finding.

When the Minister for Justice proposes to revoke a residence card, they must first write proposing to revoke the residence card and invite the applicant to submit representations within 15 working days of the letter of notice.

If you are a non-EU citizen married to or in a civil partnership with an EU citizen and if you are concerned about your immigration status because the marriage has broken down or you have separated, contact Sinnott Solicitors Dublin and Cork Today!

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Marriage of Convenience Refusals in EU Treaty Rights Cases

Sinnott Solicitors Dublin and Cork receive many queries from Applicant’s whose residence card has either been revoked or the Applicant may be faced with a threat of revocation of their residence card because the Department of Justice are of the opinion that the Applicant has entered into a marriage of convenience in order to gain immigration advantage.

Growing trend to refuse applications based on a marriage of convenience finding

There has been a growing trend in recent years within the Department of Justice to refuse applications on the basis of marriage of convenience findings even in circumstances where the marriage appears to be genuine and subsisting.  It can be extremely difficult for applicants in the present climate to prove that the marriage is genuine and subsisting and that their spouses are exercising their EU Treaty Rights within the meaning of the Directive.  Sinnott Solicitors Dublin and Cork have taken challenges before the High Court by way of Judicial Review for clients where the marriage is clearly genuine within the meaning of the Directive.

Consequences of Marriage of convenience finding

If the Minister is satisfied that the marriage to an EU Citizen is one of convenience in accordance with regulation 28 of the European Communities (Free Movement of Persons) Regulations 2015 (the Regulations) and that the marriage was contracted in an attempt to obtain an immigration permission which the Applicant would not otherwise be entitled, then the Minister will refuse the application for a permanent residence card when a person has applied and revoke the residence card.  Such a decision can have disastrous consequences for an Applicant.  It often means that a person’s citizenship application also becomes unravelled and revoked because of the decision of the Minister in relation to a marriage of convenience finding.

If the Minister is satisfied that the marriage to the EU Citizen is one of convenience, the marriage will be deemed to be void ab initio which effectively means that the marriage was invalid from the outset and therefore never existed in law for the purpose of the EU Treaty Rights application.  That leaves the Applicant in a situation whereby the residence card is revoked, and the Applicant no longer has any valid legal permission to remain in the State.

Proving that a genuine relationship exists

It is absolutely essential that Applicants adequately address any concerns that the Department of Justice may raise in relation to the genuineness of the marriage.  If the Minister decides to refuse an application for a permanent residence card or revoke a residence card, the Applicant may request a review of the decision by the EU Treaty Rights Division of the Department of Justice.

We submit that it should not be the case that an Applicant should be put through such rigorous obstacles in order to show that they are in a genuine relationship.  However, once an Applicant can put forward each and every piece of information available to show that the marriage is genuine from the outset, then that Applicant through their Immigration Solicitors will be in a better position to challenge any refusal where the Minister contends that the Applicant has engaged in an abuse of rights in accordance with the regulations.

Legal challenges to a Marriage of convenience Decision

Review

When a person’s residence card is revoked or an application for a permanent residence card is refused because the Minister is not satisfied that the marriage is genuine, it is open to the Applicant to request a review under regulation 25 of the regulations.  The review application must be made on the Form EUTR4 within 15 working days and should be sent to the Review Unit of the EU Treaty Rights division.  The review application must be very detailed and must set out once again, all of the reasons why the marriage is genuine and not one of convenience. It must also rebut all allegations made by the decision maker in respect of the genuineness of the marriage. 

Judicial Review of a marriage of convenience finding

If an Applicant can show that the relationship is genuine and if the decision maker has not proven otherwise or has drawn inferences which they should not have drawn in light of the genuineness of the relationship, then an Applicant can challenge a marriage of convenience refusal by way of a Judicial Review application before the High Court.  Sinnott Solicitors Dublin and Cork prepare Judicial Review applications of  refusals based upon a marriage of convenience finding.

In the case of Muhammad Asif .v. The Minister for Justice High Court August 2019, the Applicant sought orders quashing a review decision of the Minister and the Minister’s proposal to make a deportation order against him in circumstances where the Minister had decided that the marriage was one of convenience contracted for the purpose of obtaining a residence card.  In that case, the High Court held that the concept/term of marriage of convenience did have meaning and effect in the law of the State.  The High Court rejected the Applicant’s judicial review application and held that any rights or entitlements under the regulations would cease if it was found that those rights had been acquired by fraudulent means.

In the case of N.K and A.R v Minister for Justice 2020.195.JR in which Sinnott Solicitors Dublin and Cork acted, the Minister for Justice refused our clients application for a permanent residence card based on marriage of convenience findings. The High Court quashed this decision following judicial review proceedings.

In the refusal decision, the Minister for Justice made findings that she wasn’t satisfied that the first applicant is living or genuinely employed or self-employed in the State. Further, the Minister found that the marriage is one of convenience.

In the contested decision dated 14 January 2020, the Minister stated inter alia on its first page:

[Your legal representatives] contend, also, that the EU citizen is employed by a Hungarian company but works remotely from Ireland. It is considered, however, that the documentation provided in respect of this remote working arrangement is scant and insufficient.

Our clients submitted a letter of from the EU citizens employer in Hungary which confirmed as follows:

”…She is a Java programmer and works online with us. She’s not physically present in our office, working from home in Ireland, where she resides full time with her husband.

I hope this is to your satisfaction and should you need any other information please do not hesitate to contact me.

This letter was on headed paper, and gave the company’s telephone number, email address, website address, and the writer managing directors direct-dial number. Yet the Minister took no steps to verify the contents of the letter, despite expressing the view that “the documentation provided in respect of this remote working arrangement was scant and insufficient.”

Our clients instituted Judicial Review proceedings against the Minister for Justice challenging the refusal. In these proceedings it was submitted that the Respondent Minister for Justice took no steps to verify the employer letter as well as referring to the fact that the Minister referred to unspecified information from An Garda Síochána and Hungarian authorities in refusing the application however failed to give reasons for it. The Minister for Justice at no time took any steps to verify the letter from the EU Citizen’s employer in Hungary.

Mr Justice Meenan in the High Court quashed the decision of the Minister for Justice to refuse our clients’ Permanent Residence Card. The Judge in his decision focused on the failure of the Minister for Justice to verify the authenticity of the letter from the EU Citizen’s employer. At paragraph 26 of the Judgment, the Court held as follows:

“Without carrying out a basic step of attempting to verify the authenticity of this letter, I do not see how the respondent could validly give such a reason. This is all the more so as the respondent was clearly in contact with Hungarian authorities. I am not suggesting that it was incumbent on the respondent to initiate a Garda-style inquiry. All that was required was a few basic queries.

In conclusion, on this submission, the respondent failed in her duty to give reasons as, without basic inquiries, she was not in a position to do so. “

This judgement is an important precedent in marriage of convenience cases and Sinnott Solicitors Dublin and Cork were very pleased with this judgment not only for our client, but the many non-EEA nationals who have found themselves in similar circumstances.

Typical reasons for marriage of convenience refusals

We have noticed from the numerous decisions which we receive that the Department of Justice examine various factors and reasons when coming to a decision to revoke permission or a decision to refuse permission based upon a marriage of convenience.  A non-exhaustive list of examples of those reasons are as follows:

  • Flight details of the EU Citizen
  • Dates of departure and return to the State of both parties
  • Employment arrangements of the EU Citizen
  • Examination of documentation provided with the application
  • Tax records in the context of employment
  • Income details of the EU Citizen
  • Information from the EU Citizen’s member state of origin
  • Information in respect of the EU Citizen’s employer
  • Information regarding the Applicant’s relationship with the EU Citizen and assumptions made in respect of the relationship on the basis of the interpretation of the information provided or not provided!
  • Documentation submitted that is found to be forged, invented for the purpose of the application and not genuine leading to a determination of fraud against the applicant

The role of the Gardai and the Registrar of Marriages

In 2015, An Garda Siochana set up “operation vantage” in order to tackle potentially bogus marriages.  We have come across a number of Applicants who have been investigated by An Garda Siochana where their residential properties have been searched and other means used in order to investigate whether the marriage is genuine.

The Registrar of Marriages may also raise objections to a proposed marriage where a marriage of convenience is suspected.  That means that notifications to marry can be cancelled, abandoned or withdrawn following engagement or interviews conducted with a Registrar.  Under the Civil Registration (amendment) Act 2014, the Registrar has the right to investigate and decide whether an intended marriage would be a marriage of convenience for immigration purposes.  That is a very wide power and some of those decisions have been the subject of Judicial Review challenges before the High Court.  Statistics from the Department of Employment Affairs and Social Protection showed that 41 cases of suspected Marriage of Convenience were referred for investigation in 2019.  Twenty marriage ceremonies were ultimately prevented from proceeding.  The power afforded to the Marriage Registrar is extremely wide and if circumstances arise where the Registrar has erred in law in applying that power, that may give rise to a challenge by way of judicial review.

What to do when your application for a permanent residence card is refused or the Minister for Justice proposes to revoke your residence card based upon a marriage of convenience finding

If you are a non-EU Citizen married to or in a civil partnership with an EEA/Swiss Citizen and if you are concerned about your immigration status because the Minister is of the opinion that the marriage is one of convenience and contracted in order to gain immigration advantage, then Sinnott Solicitors Dublin and Cork would be happy to assist you in relation to your immigration case.  Please do not hesitate to contact us at 01-4062862 or info@sinnott.ie

If you are a non-EU Citizen married to or in a civil partnership with an EU Citizen and if you are concerned about your immigration status contact Sinnott Solicitors Dublin and Cork Today!

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Delay in processing EU Treaty Rights Review Applications

Clearly a very lengthy delay in processing applications for Residence Cards and in Review applications may lead to a necessity to bring a Judicial Review in order to compel the Minister to make a decision in the matter. In the of the event that the delay in processing an application/review is unreasonable and disproportionate to any object to be achieved in terms of public policy or security, it may lead to the requirement for a judicial review application before the High Court by immigration solicitors  in order to compel the EU Treaty Rights Division to process the application.

EU Treaty Rights of Irish Citizens and their Family Members – Surinder Singh route

Usually an Irish citizen applying for a non-EEA family member to reside in the State with them cannot rely on EU laws. However, there are a number of exceptional limited  situations where an Irish citizen may rely on their EU citizenship to obtain a right of residence for their non-EEA national family members within the State. These exceptional rights of Irish citizens which grant derivative rights to their non-EEA national family members, derive from the Treaty of the Functioning of the European Union and European Court of Justice case law, not Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015.

Surinder Singh route 

The ground breaking decision of the European Court of Justice in R v  Immigration Appeal Tribunal and Surinder Singh C-370/90 which is commonly known as the Surinder Singh case established that the rights of residence under EU free movement law extend to the family members of EU citizens who have returned to their own EU Member State after exercising Treaty rights in another EU Member State.

The later decision of the European Court of Justice in O&B v Minister voor Immigratie Inteegtratie en Asiel C-456-12 further confirmed the Surinder Singh decision but provided further clarification on the rights.

The court held as follows:

“Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third-country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third-country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.

The O&B case also confirmed that a period of residence of three months or more in the host Member State would be required prior to the EU citizen returning to their member state of nationality. 

What does this mean for an Irish citizen returning to Ireland with their non-EEA national family member after exercising EU Treaty Rights in another EU member state

For an Irish citizen, the Surinder Singh and O and B cases confirm that the 2015 Free Movement of Persons Regulations apply to Irish citizens and their non-EEA national family members who have exercised their EU free movement rights in another EU Member State for at least three months. The family members in these circumstances can therefore apply for a residence card to reside in Ireland.

When submitting the residence card application, in addition to the usual documentation required, applicants must submit evidence that the non-EEA family member applicant held a residence card in the EU Member State from which they are returning (or the UK if granted a residence card prior to Brexit). Evidence of residence and economic activities of the Irish citizen in the other Member State must also be submitted. Sinnott Solicitors Dublin and Cork have submitted a large amount of successful Surrinder Singh applications on behalf of our clients.

EU citizen children residing in Ireland with non-EEA national parents

The rights of EU citizen children residing in Ireland/EU member states under the Treaty on the Functioning of the European Union (Article 20) have been confirmed by the European Court of Justice in the cases of Zhu and Chen v Secretary of State for the Home Department C-200/02, Teixeira v London Borough of Lambeth and Secretary of State for the Home Department C-480/08, and Chavez-Vilchez v Raad Van Bestur De Sociale Verzekeringsbank & Others C-133/15. 

Applications for residence permission for non-EEA national parents who are the primary carer of an EU citizen child residing in Ireland, can be submitted where the family are financially self-sufficient under Article 20 of the Treaty.

Sinnott Immigration Lawyers Dublin and Cork – EU Treaty Rights Services

Sinnott Solicitors Dublin and Cork have established an excellent reputation in guiding their clients through all aspects of EU Treaty Rights applications. We provide very comprehensive advice to our clients from the initial visa in order to enter the State where visa required, the relevant application to reside in the State under EU Law, review applications, retention of residence applications and judicial review applications to the High Court in respect of any ultimate refusal of EU Treaty rights applications.  Sinnott Solicitors Dublin and Cork have had enormous success in challenging refusals of EU Treaty Rights applications before the High Court, the Court of Appeal, the Supreme Court of Ireland and the European Court of Justice.

If you have any queries in relation to EU Treaty rights applications Sinnott Solicitors Dublin and Cork would be happy to assist you with any query.  If you wish to avail of those services, please contact us by using our enquiry form, by email at info@sinnott.ie or by telephone at 01-4062862.

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