The European Communities (Free Movement of Persons) Regulations 2015

 

New EU Regulations commenced on the 1st February 2016.

The new European Communities (Free Movement of Persons) Regulations 2015 will revoke the Regulations of 2006 with exception to a listed number of transitional arrangements. The webpage of the Irish Naturalisation and Immigration Services (INIS) has announced that applications for a Residence Card from the spouse, children/grandchildren or dependent parents/grandparents of an EU citizen (qualifying family members under the Directive and Regulations) will continue to be made on Form EU1. Applications for a Residence card for a de facto partner or any other family member will be made on Form EU1A from 1st February. These forms will be available on the INIS webpage from 1st February.

Upon first-hand analysis of the new Regulations of 2015, Regulation 5 and the changes with regards to the assessment of permitted family members is of particular note. Regulation 5(5)(a) to (f)  which appears to replace Regulation 5(2) has substantially altered the domestic legislative framework in relation to the State’s assessment of  a family member of a Union citizen in order to decide whether they should be treated for the purposes of these regulations as a permitted family member. Regulation (5)(5)(a) to (f) creates a new list of criteria that the Minister shall have regard to in this regard. It is notable that this list seems to be drafted in a mandatory and exhaustive fashion.

Regulation (5)(5)(e) is of particular concern and allows the Minister to have regard to “whether the relationship described [in subparagraph (a),(b),(c) or (d) as the case may be], was brought about with the objective of obtaining permission to remain in the State of a Member State. It is our opinion that this is totally at odds with the purpose and intention of Directive 38/2004/EC and the right of European Citizens to the company of their family members within the European Union. It will be interesting to see how this provision will be used by decision makers to refuse applications from family members who fall outside the qualifying family member definition. It is hard to see how rational and substantiated findings on such a provision could be made.

Changes have also been made in relation to the right of residence in the State. The addition of Regulation 6(2) is notable and makes legislative provision for the established principle that a Union citizen and their family members may continue to reside in the State for a period in excess of 3 months where the Union citizen can satisfy the Minister that he or see continues to seek employment and has a “realistic prospect” of being engaged in such employment.

The Regulations expand on the “extensive examination of the personal circumstances of the person concerned” (as per the old Regulations) and list out the factors that he Minister shall have regard to in the assessment of granting residency to permitted family members at Regulation 6(5)(c) to include amongst others, the extent and nature of the dependency, the extent and duration of financial support, having regard to the living costs in the country from which the applicant has come, other financial resources available to the Non-EEA family member and the capacity of the Union citizen concerned to continue to support their family member in the State.”

Regulation 7 with regards to an application for an EU Fam Residence card’s places a time limit of 4 months from date of entry to the State or date from which becoming a family member to make the application. Regulation 7(4) replaces the old Regulation 7(1) (c) with regards to receiving an acknowledgement from the Minister of the submission of a valid application. It is notable that the word “immediately” has been removed; our offices are experiencing longer and longer delays in receiving acknowledgements of EU applications submitted on behalf of our clients.

The new regulations make specific provision for the revocation of residence cards in circumstances where they are no longer valid and lay out the procedure as to how this will be performed. Persons who are found to hold EU Fam Residence cards in circumstances where they are no longer entitled to them under the Directive and Regulations will be given the opportunity to make written representations within 15 working days as to why their residence card should not be revoked. Our offices have already seen such notifications issued from the EUTR section of the INIS prior to the commencement of the Regulations.

Regulation 11(2)(b) introduces a strange provision that the Non-EEA family member resident in Ireland pursuant to Regulation 6, 9 and 10 are required to inform an immigration officer within 7 days if they will be absent from the State for a period in excess of one month. This seems like an illogical provision and practically speaking how would this work?

Keep up-to-date on further analysis of the new Regulations in our subsequent blog posts.

Eimear Nugent

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