The Free Movement Rights Directive 2004/38/EC governs family reunification for EU citizens exercising their EU Treaty Rights in another EU member state.
For example, this might apply to say a British citizen who is residing in Ireland exercising their EU Treaty Rights who wants to be accompanied or joined in the state by a family member who is not a citizen of the European Union.
EU citizens and their family members have a right of residence, under Article 6 of the Directive, for up to three months in another EU member state without any conditions.
In order to qualify for a visa to Ireland under the Directive (Free Movement of Workers) the Applicant must prove that they are either;
(i) a qualifying family member or
(ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.
Qualifying Family Members include:
(i) the spouse of the EU citizen
(ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)
(iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21
(iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner
(v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner
Permitted family members include:
(i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained.
(ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.
The Applicant must prove:
(i) that there is an EU citizen from whom they can derive rights from under the Directive;
(ii) the existence of the required relationship as either a qualifying or permitted family member;
(iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.
The proofs that are required are:
(i) proof of identity – e.g valid passports or national identity cars for the Applicant and the EU citizen;
(ii) proof of the required relationship – e.g. birth certificate or a marriage certificate, civil partnership certificate;
(iii) for a permitted family member, proof of dependency or membership of the household of the EU citizen.
(iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland (employment/self-employment/
Refusals can be made on the following grounds:
(i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);
(ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or
(iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.
Ireland does not recognise polygamous marriages so this form of marriage would not prove the family relationship.
Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship.
Marriages including a person under the legal age of marriage in Ireland may be allowed, if the legal age was met in the country where the marriage was entered into.
If the visa application is refused, the Applicant can appeal the refusal within two months of the date of the decision or alternatively submit a new application if they so wish.
It is important to address the reasons for the original refusal in any appeal. If the application is further refused on appeal then the only other appeal mechanism is by way of Judicial Review to the High Court provided there are grounds to merit any such application.
Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications.
The Applicant will be granted a single entry C Visa to enter the State if the visa is approved.
If the Applicant wishes to reside in Ireland for more than three months, then they should make an application* (when in the State) for a residence card of a family member of an EU citizen exercising their EU Treaty Rights in the state.
*This Application is made on a Form EU1 submitted to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.
