Following on from last week’s analysis on introduction of the European Communities (Free Movement of Persons) Regulations 2015, this week’s blog will focus on other elements of the new Regulations dealing with removal orders, “sham marriages” and other offences under the Regulations.
Regulation 26 now adds in a provision for co-operation with Member State authorities and allows the Minister to request previous police reports concerning applicants from any Member State. Such a request must be made within 3 months of arrival in the State of the person concerned.
On the cessation of entitlements, specific reference is now made to “permitted family members”. Regulation 27(2) states that where the Minister suspects, on reasonable grounds that a right or entitlement under the Regulations has been conferred, obtained or claimed on the basis of “fraud or abuse of rights” she will be entitled to make such enquires and ask for such information as is reasonably necessary to investigate the matter. Where such investigations are to be made such persons will receive a notice and be given 21 days in which to make their representations.
The Regulations of 2006 make scant reference to “marriages of convenience” which are defined as included in the wider definition of “fraudulent means”. The Regulations of 2015 have taken a dramatic change in this respect dedicating 4 and ½ pages to the subject.
Provision is now made for the Minister to “disregard” any marriage that is the subject of an application under the Regulations where the Minister deems that marriage to be a “marriage of convenience”. Where the Minister has reasonable grounds for determining that such a marriage exists she may send a notice to the parties involved in the application requiring persons to provide information, either in writing or in person, to satisfy the Minister that the marriage is not a marriage of convenience. If no reply is received, the Minister may deem the marriage to be so. Regulation 28(4) states that the Minister may exercise this power for marriages already accepted under the 2006 Regulations and that that this is not a once off power and can be invoked again in respect of the same marriage.
Regulation 28(5) provides a long list of factors that will be taken into consideration when assessing this matter:
- The nature of the wedding ceremony
- Whether the parties have resided together as husband and wife and for how long
- Sharing income and outgoings
- Dealing with other organs of the State as husband and wife
- The nature of the relationship between the parties prior to marriage
- Whether the parties are familiar with each others details
- Whether the parties speak a language understood by both of them
- Whether any money or dowry has been involved in the marriage
- Whether the parties have a continual commitment to mutual and emotional and financial support
- The history of the parties and whether they have been involved or previously arranged a marriage of convenience here or in any other state
- The immigration status of the parties in the State
- An information provided by an tArd-Chláraitheoir within the meaning of the Civil Registration Act 2001
- Any other relevant information
A definition of marriage of convenience is also provided:
28(6) “For the purposes of these Regulations “marriage of convenience” means a marriage contracted, whether inside or outside the State, for the sole purpose of obtaining an entitlement under:
(a) The Council Directive or these Regulations
(b) Any measure adopted by a Member State to transpose the Directive – or-
(c) Any law of the State concerning the entry and residence of foreign nationals in the State of the equivalent law of another State
Regulation 29 introduces the same provisions for Civil Partnerships.
Offences under the Regulations:
There are some very notable changes to the offences under the new 2015 Regulations:
A Person who is found guilty for the purpose of seeking an entitlement:
(m) makes a statement, declaration or information which is to his or her knowledge false or misleading in a material particular;
(n) Destroys or conceals documents with the intent to deceive or
(o) Forges, fraudulent alters, assists in forging or fraudulently altering or procures to be forged or fraudulently altered any document for reward where such documents are used or intended to be used in connection with seeking an entitlement conferred by these Regulations;
(p) Sells or supplies, or has in his or her possession for the purpose of sale or supply, forged documents, where such documents are used or intended to be used in connection with seeking an entitlement conferred by these Regulations-
– on summary conviction a Class A fine or imprisonment of 12 months or both
– on conviction on indictment a fine not exceeding €100,000 or imprisonment of 3 years or both.
(The maximum offences under the 2006 Regs. were summary conviction of 12 months and/or fine of €5,000)
Transitional Arrangements of note:
Where an application for a residence card/ retention/ permanent residency has been made prior to 1st February and the application has not yet been determined that application will be determined in accordance with the new regulations.
Residence cards (EU1s, Retention and Permanent) already issued under the 2006 Regulations shall remain valid and will be deemed to be a residence card issued under the new regulations and the new regulations apply to it.
Where a review has been submitted before 1st February and not yet determined the Regulations of 2006 will still apply.