EU Treaty Rights & Spouses
European Union citizens but also their family members(as defined in the directive/legislation) can enjoy free movement and residence rights within the Union.
European Union citizenship gives fundamental rights to such citizens which includes a free movement right. Family members of Union citizens who are not Union citizens themselves can be facilitated when it comes to entry and residence to a Union member state.
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Article 3 of the Council Directive 2004/EC
This states that the directive shall apply to all Union citizens who move to or reside in a member state other than that of which they are a national, and to their family members as defined in point 2 of Article 2.
The European Communities Free Movement of Persons Regulations 2015 specify which family members are ‘qualifying family members’ and then ‘permitted family members’.
A European Union citizen’s spouse can be a qualifying family member under the 2015 Regulations. A spouse does not include a party to a marriage of convenience.
S. 4 of the 2015 Act sets out the permission of union citizens qualified family members to enter the state.
S. 4(2) states:
A qualifying family member who is not a national of a Member State and who is in possession of a valid passport as evidence of his or her nationality may not be refused to enter the state unless he or she – (a) is suffering from a disease specified in Schedule 1 of the Act, or (b) represents a danger for public policy or public security by reason of the fact that his or her personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
The decision maker will require relationship documentary evidence and with respect to any dependency facts before permitting a qualifying family member enter the Irish state. An extensive examination of the personal circumstances must be carried out by the decision maker when deciding whether the person will be treated as a dependent permitted family member or not. If the family member is dependent on the union citizen, then financial dependence must be proved in addition to the capacity of the union citizen to support the qualifying family member.
A person who has entered the state as a qualified family member or who has already entered the state and then became a qualifying family member can apply for a residence card.
Marriages of Convenience
A marriage of convenience is defined under S.28 of the European Communities Free Movement of Persons Regulations 2015 under S.28(6) as a marriage contracted whether inside or outside the state, for the sole purpose of obtaining entitlement under – (a) the council directive or the 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 or the equivalent law of another state.
Please be advised that the above-mentioned material is intended as an overview and as a broad outline of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
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