Applications for EU FAM Residence cards for permitted family members of EU Citizens, be it partners, brothers, sisters or any other family members are submitted to the EU Treaty Rights Division of the INIS under the provisions of Article 10 of Directive 2004/38/EC and Regulation 7 the European Communities (Free Movement of Persons) Regulations 2015.
Our office is of the opinion that there is no distinction in Article 10 or Regulation 7 between the time frame in the issuance of a decision on the application for permitted or qualifying family members. We quote from Article 10:
“The right of residence of family members of a Union citizen who are not nationals of a member state shall be 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”.
Regulation 7(5) states: that the Minister shall, within 6 months of the date of receiving an application under paragraph issue a residence card or make decision on the application to refuse the residence card.
There are very substantial delays now occurring in the processing of applications for EU Fam Residence cards generally and we note that EU Treaty Rights section of INIS has now indicated a waiting period of ten months.
However, many applicants whose application is based on being the permitted family member of an EU Citizen in the State are taking well in excess of one year to process. Furthermore, in our experience the vast majority of such applicants are not being issued with any certificate of application for the processing period of their application.
We have noted that the Department are now conducting an investigation into applications from permitted family members, in order to assess if they in fact meet the criteria to be found to be a permitted family member of their EU Citizen family member. Such investigations are undertaken pursuant to Regulation 5.
Our office has noticed that decisions on applications for residence cards from permitted family members are often being refused on the basis of being found not to be a permitted family member under Regulation 5. In more recent decisions the Department is also making a finding under Regulation 6 as to whether the EU Citizen has been found to be validly exercising their EU Treaty Rights in the State.
We have found that these decisions are taking up to a year or more to be reached. Whilst we acknowledge the requirements and legal provisions now in place by the 2015 Regulations to investigate the circumstances of the applicants to find if they are a permitted family are not- it is our submission that this investigation must still be conducted within a six-month time frame- as the application that has been made by the applicants is for an EU Fam Residence card. Applications for EU Fam Residence cards for any family member must be decided within 6 months as per Article 10 and Regulation 7.
BERKELEY’S IMMIGRATION TEAM