European Communities (Free Movement of Persons) Regulations 2015

JurisdictionIreland
CitationIR SI 548/2015

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 11th December, 2015.

I, FRANCES FITZGERALD, Minister for Justice and Equality, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2004/38/EC1 of the European Parliament and of the Council of 29 April 2004, hereby make the following Regulations:

Citation and Commencement

1. (1) These Regulations may be cited as the European Communities (Free Movement of Persons) Regulations 2015.

(2) These Regulations shall come into operation on 1 February 2016.

Interpretation

2. (1) In these Regulations—

“civil partner” has the meaning given to it by section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No. 24 of 2010) and does not include a party to a civil partnership of convenience;

“civil partnership” means—

(a) a civil partnership registration referred to in section 3(a) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No. 24 of 2010), or

(b) a legal relationship to which section 3(b) of that Act applies;

“Council Directive” means Directive 2004/38/EC1 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States;

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by all subsequent amendments to that Agreement;

“family member” means a qualifying family member or a permitted family member;

"immigration officer" has the meaning it has in section 1 of the Immigration Act 2003 (No. 26 of 2003);

“Irish visa” has the meaning it has in section 1 of the Immigration Act 2003 ;

“Member State” means a Member State of the European Union, other than the State;

“Member State of the European Economic Area” means a state which is a contracting state to the EEA Agreement, other than the State;

“Minister” means the Minister for Justice and Equality;

“non-national” has the meaning it has in section 1 of the Immigration Act 1999 (No. 22 of 1999);

“permanent residence card” means a permanent residence card issued under Regulation 15(3);

“permanent residence certificate” means a permanent residence certificate issued under Regulation 14(3);

“permitted family member” means, in relation to a particular Union citizen, a person who is, under Regulation 3(6), a permitted family member of the Union citizen;

“qualifying family member” means, in relation to a particular Union citizen, a person who is, under Regulation 3(5), a qualifying family member of the Union citizen;

“registration district” means the Dublin Metropolitan Area or a Garda Síochána District situated outside that Area;

“registration officer” means the officer in charge of the Garda National Immigration Bureau in the Dublin Metropolitan Area or the Superintendent of the Garda Síochána District outside that Area;

“Regulations of 2006” mean the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656 of 2006 );

“residence card” means a residence card issued under Regulation 7(5)(a) or a document called “Residence card of a family member of a Union citizen”, as referred to in Article 10 of the Council Directive;

“spouse” does not include a party to a marriage of convenience;

“Union citizen” means any person having the nationality of a Member State.

(2) A word or expression that is used in these Regulations and is also used in the Council Directive shall have in these Regulations the same meaning as it has in the Council Directive unless the contrary intention appears.

(3) In considering, for the purposes of these Regulations, whether a person—

(a) has sufficient resources not to become an unreasonable burden on, or

(b) is, or would be, an unreasonable burden on,

the social assistance system of the State, the Minister shall have regard to any claim made by him or her for assistance under the Social Welfare Acts and any payment or service received by him or her under the Health Acts 1947 to 2015 and the Housing Acts 1966 to 2014.

(4) In these Regulations a reference to a person who is enrolled in an educational establishment shall be deemed to include a reference to a person who is undertaking a vocational training course.

Application

3. (1) This paragraph applies to—

(a) Union citizens entering or remaining in the State in accordance with these Regulations, and

(b) a family member of a Union citizen referred to in subparagraph (a) who—

(i) enters the State in the company of the Union citizen,

(ii) enters the State for the purpose of joining the Union citizen, or

(iii) becomes a family member while in the State and seeks to remain with the Union citizen in the State.

(2) The European Communities (Aliens) Regulations 1977 ( S.I. No. 393 of 1977 ) and the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1977 ( S.I. No. 57 of 1997 ) shall apply to citizens of Member States of the European Economic Area other than Union citizens entering and remaining in the State in accordance with these Regulations.

(3) A person lawfully resident in the State in accordance with the provisions of the European Communities (Aliens) Regulations 1977, the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 or the Regulations of 2006 shall be deemed to be lawfully resident in the State for the purposes of these Regulations.

(4) Nothing in these Regulations shall affect the validity of a residence permit or residence document issued under the European Communities (Aliens) Regulations 1977 or the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997.

(5) For the purpose of these Regulations, a person is a qualifying family member of a particular Union citizen where—

(a) subparagraphs (a) and (b) of paragraph (1) apply, respectively, to the Union citizen and the person, and

(b) the person is—

(i) the Union citizens spouse or civil partner,

(ii) a direct descendant of the Union citizen, or of the Union citizens spouse or civil partner, and is—

(I) under the age of 21, or

(II) a dependent of the Union citizen, or of his or her spouse or civil partner, or

(iii) a dependent direct relative in the ascending line of the Union citizen, or of his or her spouse or civil partner.

(6) For the purposes of these Regulations, a person is a permitted family member of a particular Union citizen where—

(a) subparagraphs (a) and (b) of paragraph (1) apply, respectively, to the Union citizen and the person, and

(b) the Minister has, in accordance with Regulation 5, decided that the person should be treated as a permitted family member of the Union citizen for the purposes of these Regulations, which decision has not been revoked pursuant to Regulation 27.

Permission for Union citizens and qualifying family members to enter State

4. (1) A Union citizen who is in possession of a valid national identity card or passport as evidence of his or her nationality and identity may not be refused permission to enter the State unless he or she—

(a) is suffering from a disease specified in Schedule 1, 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.

(2) 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 and identity may not be refused permission to enter the State unless he or she—

(a) is suffering from a disease specified in Schedule 1, 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.

(3)(a) A qualifying family member who is not a member of a class of non-nationals specified in an order made under section 17 of the Immigration Act 2004 (No. 1 of 2004) as not requiring an Irish visa shall be in possession of a valid Irish visa as a condition of being granted permission to enter the State.

(b) The Minister shall grant qualifying family members every facility to obtain an Irish visa and, on the basis of an accelerated process, consider an application for an Irish visa from a qualifying family member referred to in subparagraph (a) as soon as possible and if the Minister decides to issue an Irish visa that visa shall be issued free of charge.

(4) An immigration officer shall not, at the point of entry, place a stamp in the passport of a qualifying family member who presents to the officer a valid residence card.

(5) Where a Union citizen or a qualifying family member who is not a national of a Member State does not have a valid national identity card or passport or, where required, the necessary Irish visa, the immigration officer shall, before refusing permission to enter the State to that person, give him or her every reasonable opportunity to do any or all of the following:

(a) obtain the necessary documents;

(b) present the necessary documents to the immigration officer within a reasonable period of time;

(c) corroborate or prove by other means that he or she is entitled to enter the State in accordance with these Regulations.

(6) Before permitting a person to enter the State as a qualifying family member, an immigration officer may require—

(a) in relation to a person referred to in clause (i) of Regulation 3(5)(b), documentary evidence of the relationship referred to therein,

(b) in relation to a person referred to...

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