Refusal of permission of leave to land in the State is regulated by Section 4(3) of the Immigration Act 2004. Section 4(3) reads as follows:
Subject to section 2(2), an immigration officer may, on behalf of the Minister, refuse to give a permission to a person referred to in subsection (2) if the officer is satisfied-
(a) That the non-national is not in a position to support himself or herself and any accompanying dependants;
(b) That the non- national intends to take up employment in the State, but is not in possession of a valid employment permit (within the meaning of the Employment Permits Act 2003);
(c) That the non-national suffers from a condition set out in the First Schedule;
(d) That the non-national has been convicted(whether in the State or elsewhere) of an offence that may be punished under the law of the place of conviction by imprisonment for a period of one year or by a more severe penalty;
(e) That the non-national not being exempt, by virtue of an order under section 17, from the requirement to have an Irish visa, and is not the holder of an Irish visa;
(f) The non-national is the subject of –
(i) A deportation order (within the meaning of the Act of 1999)
(ii) An exclusion order (within the meaning of that Act), or
(iii) A determination by the Minister that it is conducive to the public good that he or she remain outside the State;
(g) That the non-national is not in possession of a valid passport or any other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality;
(h) That the non-national-
(i) intends to travel (whether immediately or not) to Great Britain or Northern Ireland, and
(ii) would not qualify for admission to Great Britain or Northern Ireland if her or she arrived there from a place other than the State;
(i) That the non-national, having arrived in the State in the course of employment as a seaman, has remained in the State without the leave of an immigration officer after the departure of the ship in which he or she so arrived;
(j) That the non- national’s entry into, or presence in, the State could pose a threat to national security or be contrary to public policy;
(k) That there is reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non- national.
It is important to note that Section 4(3) must be read in conjunction with Section 2(2) of the 2004 Act. Namely that Section 4(3) will not be applied in a manner that is inconsistent with the State’s obligations under the treaties governing the European Communities, the Refugee Act 1996 as amended, the European Communities (Aliens) Regulations 1977 or the European Communities (Right of Residence for Non Economically Active Persons) Regulations 1997.
Our offices are currently dealing with a number of cases where family members of EU citizens have been refused leave to land in the State. In these cases, notices under Section 14(1) of the 2004 Act have been issued to them- on the basis that they do not have permission to be in the State and to remove themselves by a certain date. All identity documents are also confiscated from them.
Applications under Directive 2004/38/EC have been submitted for these applicants, as the family members of EU Citizens and requests have been made that a temporary stamp 4 is issued to them pending the determination of their applications. We have also requested that the decisions under Section 4(3) and the Section 14(1) Notices are immediately cancelled in light of the fact that applications for EU Fam Residence Cards have been lodged.
It is our view that in circumstances where an application for an E.U. Residence Card as a family member of a Union citizen exercising the right of free movement in the State has been made, refusal to revoke the refusal of leave to land is unlawful and is in breach of the applicants’ rights under European Union law.
We are of the opinion that restricting the right of free movement of the family members of EU citizens in this manner fails to comply with Articles 27 and 28 of the 2004 Directive and is ultra vires the 2004 Act.
Furthermore, failure to issue the applicants with temporary permission to remain while their application for a Residence Card is pending is in breach of Article 7(3) of the European Communities (Free Movement of Persons Regulations) 2006 and/or Article 10(1) of Council Directive 2004/38/EC.