Name of legal analyst: Oran Doyle Date Table completed: October 2008 Contact details:

Transcription

1 Name of legal analyst: Oran Doyle Date Table completed: October 2008 Contact details: Country: IRELAND Context This Table of Correspondence details the transposition in Ireland of Directive 2004/38/EC. The Directive was initially transposed by SI 226/2006 just before the transposition deadline at the end of April On 1 January 2007, Romania and Bulgaria became Member States of the EU. Ireland chose to limit the free movement of citizens of those Member States for a number of years. This required certain amendments to the transposing legislation. These amendments were effected by SI 656/2006 which revoked SI 226/2006 and re-introduced it almost in full but with certain changes. These changes are addressed in this Table of Correspondence and in more detail in the Conformity Study. For present purposes, the important point to note is that SI 656/2006 is the fundamental transposing instrument. At times this instrument makes reference to other s of immigration law which can also be seen as part of Ireland s transposition. These measures are listed below. List of transposing legislation (including legal reference and abbreviations used in TOC) SI 226/2006 European Communities (Free Movement of Persons) Regulations 2006 SI 656/2006 European Communities (Free Movement of Persons) (No 2) Regulations 2006 [This is the principal transposing instrument. All references in the TOC are to these Regulations unless otherwise stated.] SI 227/2006 (since amended by SI 657/2006) Immigration Act 1999, section 1 Employment Permits Act 2003 Employment Permits Act 2006 Immigration Act 2004, section 17 Social Welfare (Consolidation) Act 2003, Part III Immigration Act 2003, section 1 Immigration Act 1999, section 1 The Acts of the Oireachtas are all available on In Ireland, publication and collection of statutory instruments is more erratic. SI 656/2006 and SI 657/2006 are available at The two earlier instruments (now revoked) do not appear to be available on any public access website. For the purposes of this study, they were accessed at a subscription service. Other abbreviations CA: competent authorities Milieu Ltd IRELAND 1/60

2 Analysed legislation in conformity? (click as appropriate) ES NO or/and Stricter Incomplete or/and Incorrect G I Milieu Ltd IRELAND 2/60

3 Chapter I GENERAL PROVISIONS Art. 2.1 Definitions Reg 2(1) For the purposes of this Directive: 1) "Union citizen" means any person having the ity of a Member State; "Union citizen" means any person having the ity of a Member State. Literal translation Art. 2.2 (a) Art. 2.2 (b) Art. 2.2 (c) 2) "Family member" means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); Reg 2(1) "qualifying family member", in relation to a Union citizen, means- (a) the Union citizen's spouse, Literal translation N/A Optional. Reg 2(1) "qualifying family member", in relation to a Union citizen, means- (b) a direct descendant of the Union citizen who is- (i) under the age of 21, or (ii) a dependant of the Union citizen, (c) a direct descendant of the spouse of the Union citizen who is- (i) under the age of 21, or (ii) a dependant of the spouse of the Union citizen, Note that SI 656/2006 establishes two categories of family member: qualifying family member and permitted family member. This issue is addressed below but needs to be noted in relation to the definitions. Ireland does not currently recognise non-marital partnerships. But note governmental proposals to introduce such legislation in March For constitutional reasons, these partnerships will be portrayed as less favourable than oppositesex marriage. It therefore appears that this of the Directive will still not apply to Ireland. Literal translation. Note that direct descendants of partners are excluded. This follows from immediately preceding point. Milieu Ltd IRELAND 3/60

4 Art. 2.2 (d) (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); Reg 2(1) "qualifying family member", in relation to a Union citizen, means- (d) a dependent direct relative of the Union citizen in the ascending line, or a dependent direct relative of the spouse of the Union citizen in the ascending line; Literal translation. Again note that dependent direct relatives in ascending line of partner are excluded. Art. 2.3 Art ) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence. Beneficiaries This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a, and to their family members as defined in point 2 of Article 2 who accompany or join them. None. Reg 3(1) and (2) 3. (1) These Regulations shall apply to- (a) Union citizens, (b) subject to paragraph (2), qualifying family members of Union citizens who are not themselves Union citizens, and (c) subject to paragraph (2), permitted family members of Union citizens. (2) These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is- (a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member, or (b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State. Incorrect It does not appear necessary to have a transposition of this term, provided that the obligations imposed on host member states are imposed on the competent authority in Ireland. Incorrect transposition. Note, however, that Reg 3(2) introduces a requirement that the family member be lawfully resident in another Member State. This is not consistent with Article 3(1) which does not in terms impose any such requirement. This issue has caused considerable controversy and is explored in more depth in the Conformity study. This issue has been definitively resolved by the European Court of Justice in Case C-127/08 Metock v Minister for Justice Equality and Law Reform. Ireland s lawful residence requirement is inconsistent with the Directive. Art. 3.2 (a) Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their ity, not Reg 2(1) and Reg 5 "permitted family member", in relation to a Union citizen, means any family member, irrespective of his or her ity, who is not a qualifying family member of the Union citizen, and who, in his or her country of origin, habitual residence or previous residence- (a) is a dependant of the Union citizen, (b) is a member of the household of the Union citizen, (c) on the basis of serious health grounds strictly requires the personal care of the Union citizen, or Imprecise Inaccurate transposition The question of whether this amounts to adequate transposition turns on what facilitate entry and residence means in A3(2). The approach that the Irish Regulations take is to allow entry into the State for all persons who fall within the categories in A3(2) provided that the Minister for Justice is satisfied that the Milieu Ltd IRELAND 4/60

5 falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen; (d) is the partner with whom the Union citizen has a durable relationship, duly attested; AND 5. (1) A person who wishes to enter the State on the basis that he or she is a permitted family member of a Union citizen may be required to produce to the Minister- (a) (i) where the person is a Union citizen, a valid passport or identity card, or (ii) where the person is not a of a Member State, a valid passport, (b) documentary evidence from the relevant authority in the country of origin or country from which he or she is arriving certifying that he or she is a dependant, or a member of the household, of the Union citizen, (c) documentary evidence of the existence of serious health grounds which strictly require the personal care of the applicant by the Union citizen, or (d) documentary evidence of the existence of a durable relationship with the Union citizen. (2) Upon receipt of the evidence referred to in paragraph (1), the Minister shall cause to be carried out an extensive examination of the personal circumstances of the person concerned in order to establish whether he or she is a permitted family member. (3) A permitted family member, who is a member of a class of non-s not specified in an order made under section 17 of the Immigration Act 2004 as not requiring an Irish visa, shall be in possession of a valid Irish visa as a condition to being granted permission to enter the State. (4) Without prejudice to any rights or entitlements which a permitted family member may have, on an individual basis, under these Regulations, a permitted family member may not be refused permission to enter the State unless - person concerned falls within those categories and there is no public health, policy or security reason for exclusion. Once a person has entered, she is treated in the same way as a qualified family member, ie as a person qualifying under A2(2) and A3(1). Note that A3(2)(a) uses the phrase the country from which they have come and that this phrase is transposed as country of origin, habitual residence or previous residence. The Irish Regulations may be wider on this point. On the other hand, this could preclude consideration being given to a permitted family member who has just come from another EU Member State. Under the Directive, consideration would be required as this would be the country from which the person had come. Accordingly, transposition on this point may be inaccurate. (a) following the examination referred to in paragraph (2), the Minister is not satisfied that the person concerned is a permitted family member, Milieu Ltd IRELAND 5/60

6 (b) he or she is suffering from a disease specified in Schedule 1, or Art. 3.2 (b) (b) the partner with whom the Union citizen has a durable relationship, duly attested. The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people. Reg 2(1) and Reg 5 Reg 2(1) and Reg 5 (2) (c) his or her personal conduct has been such that it would be contrary to public policy or would endanger public security to grant him or her permission to enter the State. (5) Where the Minister refuses permission to enter the State pursuant to paragraph (4), he or she shall notify the person concerned of the reasons for such refusal. "permitted family member", in relation to a Union citizen, means any family member, irrespective of his or her ity, who is not a qualifying family member of the Union citizen, and who, in his or her country of origin, habitual residence or previous residence-[ ] (d) is the partner with whom the Union citizen has a durable relationship, duly attested; 5(2) Upon receipt of the evidence referred to in paragraph (1), the Minister shall cause to be carried out an extensive examination of the personal circumstances of the person concerned in order to establish whether he or she is a permitted family member. The definition of permitted family member includes the partner with whom the Union citizen has a durable relationship, duly attested. Accordingly, transposition appears good. Same comments as in immediately previous box apply. The only personal circumstances considered are whether the person falls within the categories and the public health, policy and security issues. Chapter II RIGHT OF EXIT AND ENTR Art. 4.1 Right of Exit Without prejudice to the s on travel documents applicable to border controls, all Union citizens with a valid identity card or passport and their family members who are not s of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to Reg 18(1)(a) In State (M) v. Attorney General [1977] IR 73, the High Court held that the Constitution protects a right to travel, 5(5) (5) Where the Minister refuses permission to enter the State pursuant to paragraph (4), he or she shall notify the person concerned of the reasons for such refusal. 18. (1) Subject to the other s of these Regulations, a person to whom these Regulations apply shall be entitled- (a) to the same rights of travel in or to or from the State as those to which Irish citizens are entitled, Reg 5(5) imposes a duty to give reasons. See analysis of Article 15 and A combination of reg 18(1)(a) and the constitutional right of Irish citizens to travel achieves this aim. Milieu Ltd IRELAND 6/60

7 another Member State. including a right to leave the State. Art. 4.2 Art. 4.3 Art. 4.4 No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies. Member States shall, acting in accordance with their laws, issue to their own s, and renew, an identity card or passport stating their ity. The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years. None None. Combination of Reg 18(1)(a) and constitutional right to travel of Irish citizens achieves this aim. None None Passports currently issued by Executive in administrative system. The basis for this is an inherent state power presumptively assigned to the Executive. There is no textual basis for this. Passports Bill 2007 seeks to put this matter on a statutory basis for the first time. Ireland does not issue identity cards to its own s. None None Ambiguous transposition Ambiguous General practice is currently for passports of 10 years duration. Passports can be issued for a shorter duration where a person requests or where a previous passport has been lost (in which case a replacement is issued for the remainder of the term), or where a person persistently loses a passport. These exceptions appear to breach Article 4.4, unless that article allows exceptions. If exceptions are allowed, these exceptions appear reasonable. Section 9 of the Passports Act 2008 assigns to the Minister for Foreign Affairs a power to regulate the duration of validity of a passport. It appears that this Act has not yet been commenced. The current note on the Department of Foreign Affairs website reads: Validity of Passports Infants (up to age 3) are issued with a 3 year passport. Children aged 3-17 are issued with a 5 year Milieu Ltd IRELAND 7/60

8 Art. 5.1 Right on Entry 1. Without prejudice to the s on travel documents applicable to border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not s of a Member State leave to enter their territory with a valid passport. Reg 4(1) and 4(2) 4. (1) A Union citizen who is in possession of a valid identity card or passport as evidence of his or her ity and identity may not be refused permission to enter the State unless- (a) he or she is suffering from a disease specified in Schedule 1, or (b) his or her personal conduct has been such that it would be contrary to public policy or would endanger public security to grant him or her permission to enter the State. (2) A qualifying family member of a Union citizen who is not a of a Member State and who is in possession of a valid passport as evidence of his or her ity and identity may not be refused permission to enter the State unless- passport. Persons aged 18 and over are issued with a 10 year passport In certain cases (e.g. where a previous passport has been lost or stolen), the Passport Office may restrict the validity of a replacement passport. The basic right to entry is adequately transposed. However, note that the public health, security and policy grounds for refusal of entry are authorised by Article 27 of the Directive are not properly transposed by the Irish Regulations. As a result, the references to Schedule 1 import a transposition error into this regulation, but the error really lies elsewhere. See discussion below. (a) he or she is suffering from a disease specified in Schedule 1, or (b) his or her personal conduct has been such that it would be contrary to public policy or would endanger public security to grant him or her permission to enter the State. Art. 5.2 No entry visa or equivalent formality may be imposed on Union citizens. 2. Family members who are not s of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, None None Reg4(3)(a) (3) (a) A qualifying family member, who is a member of a class of non-s not 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 to being granted permission to Incomplete Despite absence of specific transposing, transposition is achieved because visas are not required for citizens of EU Member States Incomplete transposition The latest Order made pursuant to s17 of Immigration Act 2004 only lists States that are also listed in Regulation (EC) No 539/2001. See Milieu Ltd IRELAND 8/60

9 with law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement. Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure. Reg 4(3)(b) enter the State. (b) The Minister shall, 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, the relevant Irish visa shall be issued free of charge. Incorrect SI 657/2006. There is a potential for this to change, so it should be kept under review. The problem with transposition of this is that no attempt has been made to transpose the exemption for valid residence card holders. Incorrect transposition Incorrect transposition as the obligation to facilitate the obtaining of visas is not transposed. Art The host Member State shall not place an entry or exit stamp in the passport of family members who are not s of a Member State provided that they present the residence card provided for in Article 10. Reg 4(4) (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. Incorrect Incorrect transposition Note that the residence card referred to in regulation 4(4) is only a residence card issued by the Irish authorities (given the definition in regulation 2). As Article 5(3) of the Directive means that this prohibition also applies in respect of residence cards issued by other Member States, it has not been properly transposed. Art Where a Union citizen, or a family member who is not a of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to Reg 4(5) (5) (a) Where a Union citizen, or a family member who is not a of a Member State, does not have a valid identity card or passport or, if required, the necessary Irish visa, the immigration officer may, subject to subparagraph (b), refuse permission to enter the State to that person. (b) Before refusing permission to enter the State under subparagraph (a), the immigration officer shall give the person concerned every reasonable opportunity to- (i) obtain the necessary documents, Note that no reference to exit stamps, but this is in practice unlikely as Ireland does not operate exit controls and probably already covered by transposition of Art 4.1 Milieu Ltd IRELAND 9/60 Effective Transposition. Note, however, that substitution of the phrase in accordance with these Regulations for the Directive s phrase of covered by the right of free movement and residence means that any mistransposition of other aspects of the Directive (such as the public health exception) gets reproduced in this.

10 corroborate or prove by other means that they are covered by the right of free movement and residence. Art.5.5 Chapter III Art The Member State may require the person concerned to report his/ her presence within its territory within a reasonable and non-discriminatory period of time. Failure to comply with this requirement may make the person concerned liable to proportionate and nondiscriminatory sanctions. RIGHT OF RESIDENCE Right of residence for more than three months 1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. Directive 2004/38/EC on the right of citizens of the Union and their family members (ii) present the necessary documents to the immigration officer within a reasonable period of time, or corroborate or prove by other means that he or she is entitled to enter the State in accordance with these Regulations. However, the expert has still indicated adequate transposition here as this is really not a fault with Reg 4(5) itself but with other s in the Regulations. Note that the Irish regulations have not transposed the phrase have them brought to them. It seems likely that this would be covered by the word obtain in any event but, as the phrase appears in the Directive, it ought also to have appeared in the Regulations. None None n/a Ireland has not made use of this option. Reg 6(1) 6. (1) Subject to Regulation 20, a person to whom these Regulations apply may reside in the State for up to 3 months on condition that he or she- (a) (i) where the person is a Union citizen, holds a valid identity card or passport, (ii) where the person is not a of a Member State, holds a valid passport, and (b) does not become an unreasonable burden on the social welfare system of the State. Milieu Ltd IRELAND 10/60 Note that Reg 6(1)(b) imposes an additional requirement that is not authorised by Art 6 but that does appear to be authorised by Art 14.1 of the Directive. General note on saver subject to Regulation 20. All the entitlements in reg 6 have this saver. Regulation 20 allows for removal from State where a person does not qualify under the Regulations or where there is public policy, health or security ground. To achieve a coherent reading of the regulations, this saver must be read as importing the public health, security and policy grounds for refusal into reg 6. This appears unproblematic apart from the concern over whether the Irish Regulations draw public

11 Art. 6.2 Art.7.1 (a) Art.7.1 (b) 2. The s of paragraph 1 shall also apply to family members in possession of a valid passport who are not s of a Member State, accompanying or joining the Union citizen. Right of residence for more than three months All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or Directive 2004/38/EC on the right of citizens of the Union and their family members health too widely. Reg 6(1) Ditto above text Reg 6(2)(a)(i) Reg 6(2)(a)(ii) (2) (a) Subject to Regulation 20, a Union citizen may reside in the State for a period longer than 3 months if he or she- (i) is in employment or is self-employed in the State, (ii) has sufficient resources to support himself or herself, his or her spouse and any accompanying dependants, and has comprehensive sickness insurance in respect of himself or herself, his or her spouse and any accompanying dependants, or But all the comments in the above box apply to the transposition of this as well. Milieu Ltd IRELAND 11/60 Literal transposition The list in Regulation 6(2)(a) is alternative, not cumulative. The phrase support himself is less specific than the Directive s phrase sufficient resources not to become a burden on the social assistance system. However, in the Expert s view they amount to the same proposition. If any ambiguity does exist, it would quickly be resolved by reference to the Directive. Under the Directive, the EU citizen must have sufficient resources for all family members, whereas under the Irish Regulations, the Union citizen must only be able to support the dependants. If anything, this makes it easier for the Union citizen to gain the right to reside in Ireland. In practice, however, it would only be dependant family members who might become a burden on the social assistance system, so the actual differences between the two terminologies might be slight. Given that the term dependant in the Regulations appears in relation to the definition

12 Art.7.1 (c) Art.7.1 (d) Art. 7.2 (c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and - have comprehensive sickness insurance cover in the host Member State and assure the relevant authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. The right of residence provided for in paragraph 1 shall extend to family members who are not s of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). Directive 2004/38/EC on the right of citizens of the Union and their family members Reg 6(2)(a)(iii) Reg 6(2)(a)(iii) Reg 6(2)(a)(iv) Reg 6(2)(b) (iii) is enrolled in an educational establishment in the State for the principal purpose of following a course of study there, including a vocational training course, and has comprehensive sickness insurance in respect of himself or herself, his or her spouse and any accompanying dependants, or (iv) subject to paragraph (3), is a family member accompanying or joining a Union citizen who satisfies one or more of the conditions referred to in clause (i), (ii) or (iii). (b) Subject to paragraph (3), a family member of a Union citizen who is not a of a Member State shall be entitled to reside in the State for more than 3 months where the Minister is satisfied that the Union citizen concerned satisfies one or more of the conditions referred to in subparagraph (a)(i), (ii) or (iii). of family members in Regulation 2, the courts would interpret dependants in Regulation 6(2)(a)(ii) to mean dependant family members. Notice that accredited or financed by the host Member State on the basis of its legislation or administrative practice is not transposed, but this omission does not affect the conformity of the transposition. Milieu Ltd IRELAND 12/60 Note that this is broader than the Directive as only comprehensive sickness insurance is required of those in education. The Irish Regulations do not impose a general requirement of sufficient resources on this point. The exception in paragraph 3 operates to deprive permitted family members (the Art 3(2) people) of an automatic right to residence on the basis of the EU citizen being enrolled in an educational establishment. The Minister for Justice must consider their circumstances. But note same comment as above re paragraph 3. Note also that the phrase Minister is satisfied may be interpreted as granting a discretion to the Minister. If this is so, the Irish courts applying standard administrative law principles would be slower to overturn the Ministerial

13 Art. 7.3 (a) Art. 7.3 (b) Art. 7.3 (c) 3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident; (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office; (c) he/she is in duly recorded involuntary unemployment after completing a fixedterm employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; Reg 6(2)(c)(i) Reg 6(2)(c)(ii) Reg 6(2)(c)(iii) and Reg 6(2)(d) Subject to Regulation 20, a person to whom subparagraph (a)(i) applies may remain in the State on cessation of the activity referred to in that subparagraph if- (i) he or she is temporarily unable to work as the result of an illness or accident, (ii) he or she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with a relevant office of the Department of Social and Family Affairs and FÁS, (iii) subject to subparagraph (d), he or she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first year and has registered as a job-seeker with a relevant office of the Department of Social and Family Affairs and FÁS, or And Incorrect decision Incorrect transposition The Directive does not refer to the retention of the right of residence but to the status of worker which is not the same. Although it is clear that they are linked, retaining the status of worker is important since it gives some additional protection against expulsion and allows for acquiring the right of permanent residence earlier. Similarly, retaining the status of worker grants the person concerned the right to equal treatment with no exceptions. Almost Literal transposition: the Department of Social and Family Affairs and FÁS is the relevant employment office; But affected by error of 7(3)(a) But affected by error of 7(3)(a) (d) In a case to which subparagraph (c)(iii) applies, the right to remain referred to in paragraph (c) shall expire 6 months after the cessation of the activity concerned unless the person concerned enters into employment within that period. Art.7.3 (d) (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be Reg 6(2)(c)(iv) (iv) except where he or she is involuntarily unemployed, he or she takes up vocational training related to the previous employment Incorrect Incorrect transposition This is badly worded and suggests that a person who is involuntarily unemployed Milieu Ltd IRELAND 13/60

14 related to the previous employment. Art By way of derogation from paragraphs Reg 6(3) 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner. Art. 8.1 Art. 8.2 Administrative formalities for Union citizens 1. Without prejudice to Article 5(5), for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities. 2. The deadline for registration may not be less than three months from the date of arrival. A registration certificate shall be issued immediately, stating the name and address of the person registering and the date of the registration. Failure to comply with the registration requirement may render the person concerned liable to Directive 2004/38/EC on the right of citizens of the Union and their family members (3) (a) Paragraph (2)(a)(iv) and (2)(b) shall operate to allow only a qualifying family member of a Union citizen to whom paragraph (2)(a)(iii) applies to remain in the State. (b) Without prejudice to subparagraph (a), the Minister may, following an extensive examination of the personal circumstances of the person concerned, permit a permitted family member of a Union citizen to remain in the State. (c) Where the Minister does not permit a person to remain in the State pursuant to subparagraph (b), he or she shall notify the person of the reasons for the decision. None. does not gain any benefit from the regulation. Milieu Ltd IRELAND 14/60 This is more generous than the Directive. Regulation 6(2)(a)(iv) and 6(2)(b) give rights to family members of Union citizens where the Union citizen satisfies certain criteria. Where the criterion satisfied is enrolment in education, then the benefits are limited to qualifying family members. But this is wider than the Directive, because the Directive limits these derivative rights to spouses, registered partners and dependent children. As such, the dependent direct relatives in ascending line get an automatic right under the Irish Regulations while Art 7(4) of the Directive only requires that they have their entry and residence facilitated, as if they were an Article 3(2) person. Ireland does not require residence certificates for Union citizens and has chosen not to transpose Art 8. This is permissible. This comment applies to all boxes below. Regarding job seekers, it probably would not be correct to describe registration for job-seekers as "optional". If they did try to register, they would not succeed as there is no system there to allow them do it. None. See above.

15 proportionate and non-discriminatory sanctions. Art For the registration certificate to be issued, Member States may only require that Union citizens to whom point (a) of Article 7(1) applies present a valid identity card or passport, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed persons, Union citizens to whom point (b) of Article 7(1) applies present a valid identity card or passport and provide proof that they satisfy the conditions laid down therein, Union citizens to whom point (c) of Article 7(1) applies present a valid identity card or passport, provide proof of enrolment at an accredited establishment and of comprehensive sickness insurance cover and the declaration or equivalent means referred to in point (c) of Article 7(1). Member States may not require this declaration to refer to any specific amount of resources. Art Member States may not lay down a Reg 2(3) fixed amount which they regard as sufficient resources, but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which s of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State. Directive 2004/38/EC on the right of citizens of the Union and their family members None. See above None. See above None. See above (3) For the purposes of these Regulations, a person shall be regarded as not having sufficient resources to support himself or herself and his or her dependants where he or she would qualify for assistance under Part 3 of the Social Welfare Consolidation Act 2005 (No. 26 of 2005) if a claim were made by or on behalf of the person. Incorrect Incorrect transposition. defines sufficient resources by reference to Part III of the Social Welfare (Consolidation) Act Although Ireland has not transposed Art 8 of the Directive, the definition of sufficient resources elsewhere in the Directive is rooted back to here, so this is an important point. The Irish Regulations use the test under the Social Welfare legislation as the definitive test. Milieu Ltd IRELAND 15/60

16 Art. 8.5 Art For the registration certificate to be issued to family members of Union citizens, who are themselves Union citizens, Member States may require the following documents to be presented: Directive 2004/38/EC on the right of citizens of the Union and their family members None. (a) a valid identity card or passport; None. (b) a document attesting to the existence of a family relationship or of a registered partnership; (c) where appropriate, the registration certificate of the Union citizen whom they are accompanying or joining; (d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met; (e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen; (f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen. Administrative formalities for family members who are not s of a Member State. None. None. None. None. None. Reg 7(2) (2) Where the Minister is satisfied that it is appropriate to do so, he or she shall, within 6 months of the date of receiving an application made under paragraph (1)(a), cause to be issued a residence card containing the particulars set Incorrect While this test itself would take account of personal circumstances, it is arguable that this is incorrect transposition as the Directive envisages that the social welfare test is a minimum threshold but not one that can be applied rigorously in all cases. Incorrect transposition There is no requirement that the Minister must issue where the planned period of residence is Milieu Ltd IRELAND 16/60

17 1. Member States shall issue a residence card to family members of a Union citizen who are not s of a Member State, where the planned period of residence is for more than three months. Art The deadline for submitting the Reg 7(1)(a) residence card application may not be less than three months from the date of arrival. out in Schedule 3 in respect of the family member concerned. 7. (1) (a) A family member of a Union citizen who is not a of a Member State and who has been resident in the State for not less than 3 months shall apply to the Minister for a residence card. for more than 3 months (provided that all other requirements are met). Art Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non-discriminatory sanctions. Reg A person who- (1) being a person to whom these Regulations apply, fails to comply with any requirement of these Regulations or under these Regulations, or (2) asserts an entitlement to any rights under these Regulations on the basis of information which he or she knows to be false or misleading in a material particular, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding eur5,000 or to a term of imprisonment not exceeding 12 months, or both., Ambiguous Effective, but ambiguous transposition Ambiguous transposition as imprisonment is a too harsh and disproportionate sanction. This level of offence is classified in Ireland as a minor offence, meaning that it is constitutionally permissible to try a person summarily (ie, without a jury) in the lowest court (the District Court). It therefore probably meets the Directive s requirements. Art.10.1 Issue of residence cards 1. The right of residence of family members of a Union citizen who are not s of a Member State shall be SI 656/2006, Reg 7(2) and 7(1)(c) (2) Where the Minister is satisfied that it is appropriate to do so, he or she shall, within 6 months of the date of receiving an application made under paragraph (1)(a), cause to be issued a residence card containing the particulars set out in Schedule 3 in respect of the family member Incorrect However, it could be argued that the maximum penalties allowed are too severe. It would be very unusual for a maximum penalty to be imposed, but it could be argued that 12 months imprisonment is disproportionate. As this is a general penalty that applies in respect of all breaches of the Regulations, it is probably not envisaged that the highest penalty would be imposed for a breach of this particular. Nevertheless, this may mitigate against legal certainty. Incorrect transposition This does not specifically transpose the requirement that the residence card be named Residence card of a family member of Milieu Ltd IRELAND 17/60

18 evidenced by the issuing of a document called Residence card of a family member of a Union citizen no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately. concerned. And (c) The Minister shall immediately cause to be issued a notice acknowledging receipt of an application made under subparagraph (a). a Union Citizen And SCHEDULE 3: PARTICULARS TO BE CONTAINED OF RESIDENCE CARD OF FAMIL MEMBER OF UNION CITIZEN WHO IS NOT NATIONAL OF MEMBER STATE Art.10.2 (a) 2. For the residence card to be issued, Member States shall require presentation of the following documents: (a) a valid passport; Reg 7(1)(b) and Schedule 2(5) The residence card shall contain the following particulars 1. Name of person 2. Nationality 3. Date of Birth 4. Date of issue of card 5. Date of expiry of card 6. Unique number 7. Record in electronic form of biometric data of the person to whom it is given 8. Statement that the card is not, and may not be used as, a document establishing the ity or identity of the holder 9. An indication that the person is a family member of a Union citizen 10. Statement that the card is the property of the Minister for Justice, Equality and Law Reform or is the property of Garda National Immigration Bureau 11. Photograp (b) An application made under subparagraph (a) shall contain the particulars set out in Schedule 2 and be accompanied by such documentary evidence as may be necessary to support the application. And SCHEDULE 2 Incorrect Incorrect transposition. The document required by Article 10(2)(a) is required in Irish law. However, Schedule 2 of the Regulations requires many documents which are not envisaged by the Directive and therefore breach Community law and amount to Milieu Ltd IRELAND 18/60

19 PARTICULARS TO BE CONTAINED IN APPLICATION FOR RESIDENCE CARD B FAMIL MEMBER OF A UNION CITIZEN WHO IS NOT NATIONAL OF MEMBER STATE incorrect transposition of the Directive. In particular, the documents listed at 6, 7, 8, 9, 10, 16, 17 and 19 are not relevant to establishing the family connection which is the sole basis for issuing the residence card. Applicant's particulars 1. Name of applicant 2. Address of applicant 3. Date and place of birth of applicant 4. Nationality of applicant 5. Number, date and place of issue of applicant's passport/ identity card (original of document to be provided) 6. Occupation, if any, of applicant 7. Immigration Reference Number and PPS Number in Ireland 8. Declaration of any criminal record 9. Immigration history in Ireland 10. Photographs or other documentary evidence Art.10.2 (b) (b) a document attesting to the existence of a family relationship or of a registered partnership; Reg 7(1)(b) and Schedule 2 Particulars of Union citizen of whom the applicant is a family member/dependant 11. Name of Union citizen 12. Address of Union citizen in Ireland 13. Date and place of birth of Union citizen 14. Nationality of Union citizen 15. Number, date and place of issue of Union citizen's passport/ identity card (original of document to be provided) 16. Occupation of Union citizen in Ireland 17. Immigration reference number if any and PPS number of Union citizen in Ireland 18. Details of relationship between applicant and Union citizen 19: Date on which Union citizen first entered Ireland. (b) An application made under subparagraph (a) shall contain the particulars set out in Schedule 2 and be accompanied by such documentary evidence as may be Milieu Ltd IRELAND 19/60.

20 necessary to support the application. And Art.10.2 (c) Art.10.2 (d) Art.10.2 (e) Art.10.2 (f) Art.11.1 Art.11.2 (c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining; (d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met; (e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen; (f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen. Validity of the residence card 1. The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years. 2. The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one Reg 7(1)(b) and Schedule 2 Reg 7(1)(b) and Schedule 2 Reg 7(1)(b) and Schedule 2 Ditto. Ditto. Ditto. Reg 7(1)(b) Ditto. Reg 8(1) Reg 8(2) 8. (1) Subject to Regulation 20, the period of validity of a residence card shall be equivalent to the envisaged period of residence in the State of the Union citizen of whom the recipient of the card is a family member, or not less than 5 years from the date of issue of the card, whichever is the lesser period. (2) The validity of a residence card shall not be affected by temporary absences of the card holder not exceeding 6 months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of 12 consecutive months for important reasons Milieu Ltd IRELAND 20/60. Literal transposition

21 absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third Art.12.1 country. Retention of the right of residence by family members in the event of death or departure of the Union citizen 1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are s of a Member State. Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1). Reg 9(1)(a) and (b) such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country. 9. (1) (a) Subject to subparagraph (b), a family member of a Union citizen who is a of a Member State may retain a right of residence in the State on an individual and personal basis in the event of the death or departure from the State of the Union citizen. (b) Before acquiring an entitlement to permanent residence under Regulation 12, a family member referred to in subparagraph (a) must satisfy one or more of the conditions referred to in Regulation 6(2)(a)(i) to (iv). Incorrect Incorrect transposition. Article 12(1) of the Directive does not allow Ireland to limit the right of residence of family members who are EU citizens to an individual and personal basis. This restriction can only be applied to family who are not EU citizens. Note also that the Irish Regulations appear to have misinterpreted the before clause as a condition that must be met for permanent residence to be achieved as opposed to a condition that must be met while the person is resident before she acquires permanent residence. Art Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not s of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death. Reg 9(2)(a) (2) (a) Subject to subparagraph (b), upon the death of a Union citizen, a family member of the Union citizen who is not a of a Member State may, where he or she has been residing in the State as a family member of the Union citizen for at least one year before the death, continue to reside in the State on an individual and personal basis. This, however, appears to amount to more favourable transposition as it possibly creates a new right to permanent residence and does not impose a restriction that the Directive imposes on people before they acquire permanent residence. Milieu Ltd IRELAND 21/60