If they do not present to GNIB within the 90 days the spouse will have overstayed the visa. In that case, the spouse must put in an application which could take twelve months. It is important to note that the spouse could not work within that time. The application is an application for residence permission which requires the completion of the residence permission form. It is advisable that if they cannot get the visa within the 90 days or the appointment with GNIB that they should leave the state and come back rather than overstaying the holiday visa. For people whose visa has expired or for those who are from visa required countries the application is completely different and a lot more cumbersome.
For visa required countries there are certain financial criteria that must be met and the person must be outside of the country in order to make the application.
The spouse of an Irish Citizen will be granted a D Visa (long stay) to enter the state. After that they will register with the GNIB and the husband or wife will be given a stamp 4 at registration. Any children that are under 16 will only register when they turn 16 or they may apply for citizenship before that.
Zambrano Case – Application for permission to remain on the basis of being the parent of an Irish Born Child
The Court of Justice of the European Union ruled that the non-EU parents of EU Citizen children must be allowed to live and work in the EU state. This judgement is known as the “Zambrano case”. A parent is entitled to reside with their Irish born child pursuant to the Zambrano decision. The parent must make an application for permission to remain in the state on the basis of their parent of an Irish born child. Once that application is successful their status will be upgraded to Stamp 4. The parent has the right to live and work in the state. The child must have a passport in order for the application to be made.
The Zambrano case affects non-EU parents of Irish born children. Those children must be citizens and living in the state. If the parent has not permission to remain in Ireland or lives outside of the state they must file a written application or visa application to the department. The application must set out in detail their relationship and support of their Irish citizen child. If the applicant was on a student visa at the time of the child’s birth, then that applicant would not be entitled to the benefit of the Zambrano rules.
Application to bring Visa required non-EEA National parent to Ireland to join family
We must establish the following information:
- The marital status of the parent
- Any siblings or family of the parent in their home country
- Whether they own their own property
- The earnings of the parent/parents
- If the family here is supporting the parent or non-EEA National applicant, we need to establish whether that person has a pension and what their income is.
- We need to establish what financial support is being given to the parent from the family in this jurisdiction
- How long the family has been supporting the parent
- How the money is transferred to the parent whether it be by bank transfer, western union, cash etc. Establish what the contact between the parent and the family here has been. For example, how many times have they been over and back to see each other?
- Establish what the finances of the family are here
- Establish whether they own a property
- Establish their status in Ireland, whether they are citizens etc.
- Find out if they have any debts
- Establish whether the parent in the home country has ever been refused a visa for any other country
- Find out how often they contact each other via telephone, WhatsApp etc.
It must be shown that the parent will not be a burden on the state. Private health insurance must be taken out in relation to that parent. It must be shown that the parent is dependent on the family here. If the family are claiming that they travelled over and back to the home country to provide parents with money then a proper paper trail to show their travel over and back must be submitted.
The normal option in circumstances where a visa required national wishes to join the family in Ireland is a stamp 0.
Bank Transfers to Non-EEA National parents or dependents
Western Union Money Transfers are not as sufficient evidence as a bank transfer because it is not possible to prove that the funds were transferred to the applicant personally to their bank account. Therefore, it is always better to have a bank transfer of funds as opposed to Western Union.
Application for permission to remain in the State on the basis of a De Facto Relationship
Defacto Permission to Remain in Ireland is a form of permission to remain granted by the Department of Justice and Equality to non-EEA nationals who are in a loving and durable relationship akin to marriage with an Irish national or non-EEA national who is legally resident in Ireland on a Stamp 1, 4 or 5.
In order to make such an application, the couple must be living together for two years prior to the application. If they were living abroad prior to living in Ireland as part of that two years, that time living abroad will be counted provided they can prove they were living together. If an Irish person is in a relationship with a non-EEA National and does not have proof of two years living together prior to the application, often the couple will decide to get married. In those circumstances, the non-EEA National partner would travel to Ireland on 90-day visas and ensure that those visas are not overstayed. Once the parties are married they would make an application to GNIB to go to GNIB with the marriage certificate, passports and proof of address. The GNIB will generally issue a stamp 4 there and then. This should be done within the 90-day visit. If the partner overstays the 90-day visit then the application would take at least a year to process.
Setting a date for a wedding does not allow the parties to stay here until the marriage takes place. There is no bridging visa or finance visa that can be obtained. Therefore, the person would still be coming in and out on the 90-day visa until the marriage takes place at which point they should obtain an appointment and attend GNIB with the marriage certificate within the 90-day period.
It is often easier for the couple to get married in the country of the non-EEA National and to return to Ireland. A lot of people go to Copenhagen because you only need to give a couple of days’ notice to marry there.
In April 2017 the Department of Justice and Equality reviewed the terms of this permission and reduced the cohabitation period from two years to one year. The immigration team at Sinnott Solicitors was delighted with this change as we felt that the two-year requirement was very restrictive for some couples who have been in long-term loving relationships but could not satisfy the two year cohabitation rule for various reasons such as all evidence of address being in the name of one of the parties only.
On the 1st of September 2017 following a review of the scheme, the Irish Naturalisation and Immigration Service announced that the cohabitation requirement was returning to the original two-year period and this was applicable to all applications received by their offices from the 1st of September 2017.
This is a disappointing development in circumstances where the one-year cohabitation requirement offered the opportunity to a greater number of non-EEA nationals who are in loving and durable relationships with Irish or legally resident EEA nationals to apply for permission to remain on this basis and the return to the old rule will prohibit a number of people from benefiting from this application.
For any person planning to submit an application for Defacto Permission to Remain in the state it is very important that they are aware of this recent change as it could mean that they are no longer entitled to apply for the residency as although they satisfy the previous one-year requirement they do not satisfy the two-year cohabitation condition.
In order to qualify for this permission to remain in the state, the Applicant must be able to prove that they are in a loving and committed relationship with an Irish national or non-EEA national who is legally resident in Ireland on a Stamp 1, 4 or 5
and must be able to prove that they have been cohabiting for a minimum period of two years prior to the application.
Applications will only be accepted from Applicants who are lawfully present in the state on Visit Conditions for non-visa required nationals or Applicants who are resident in the state on another type of permission to remain – i.e. Stamp 1, 2 or 3.
Applications from individuals who are resident in the state without lawful permission and/or who are going through the International Protection Process and/or who are the subject of Deportation Orders/Notifications of Intention to Deport under s3(11) of the Immigration Act 1999 will continue to be refused.
Visa required nationals who wish to apply for Defacto Permission To Remain will have to submit an application for a Join Partner Long Stay D Visa from outside of the state so all other conditions of the application remain unchanged.
Applications may be considered from Applicants who do not satisfy the two-year cohabitation requirement, however, this is only in extremely limited and exceptional cases.
All applications must be submitted with the application form dated 1 September 2017 which is available at the following link
The Applicant and their partner must swear a statutory declaration before a practising solicitor/peace commissioner/notary public/commissioner for oaths.
A supporting witness who can attest to the relationship and information submitted must also swear a statutory declaration.
If you would like to discuss an application for Defacto Permission to Remain in the state do not hesitate to contact the office today to arrange an appointment with one of our specialist immigration solicitors.
Family Members of EU Nationals
An EUFAM 4 is only granted to family members of EU Nationals who are granted residence cards. For example, a family member who wishes to join an EU Citizen here will be granted a C Visa (short stay) to enter the state. After that they would apply for a residence card by submitting a form EU1 to the Department. If the Applicant is over 16 they will be granted a temporary stamp 4 whilst the application is being processed. At the end of the six months provided everything is in order, they will be granted a residence card for a period of five years which is an EUFAM 4.
Stamp 4 and EU Treaty Rights
In relation to a person who is on stamp 4 because they are married to an EU National, the spouse must exercise their EU Treaty rights. If that spouse is not exercising their EU Treaty rights and if there are absences of over six months without sufficient and good reason then the Applicant runs the risk of having their stamp 4 revoked.
In relation to the EU spouse generally, they must have sufficient resources which include private medical insurance. It is important that they are not on social welfare and that they are working and earning. In relation to any marriage that the Garda National Immigration Bureau considers being an arranged marriage, Operation Vantage is currently investigating those marriages and targeting those that have obtained a stamp 4 as a result of an arranged marriage.