EU Treaty Rights is term used to describe the rights of Union citizens and their family members to exercise free movement within the territory of the Member States of the EU. The area is regulated by Directive 2004/38/EC, as implemented in Ireland by the European Communities (Free Movement of Persons) Regulations 2015, which was brought into operation on the 1st February 2016.
These laws give specific rights to EU citizens to move from one Member State to another in certain circumstances, and extend to their specified family members. Generally, the right of free movement of the EU citizen flows from the EU citizen’s engagement in economic activity in the host Member State. Such activities include employment, self employment, study and residence on the basis of financial self sufficiency.
The Directive of 2004 and 2015 Regulations divide the relevant family members to whom the EU free movement rights extend into two categories; “Qualifying family members” include the spouse, children of both the EU citizen and the spouse of the EU citizen who are either under the age of 21 or aged 21 and over and still dependent, and dependent parents/grandparents of the EU citizen and their spouse. “Permitted family members” include other family members of the EU citizen who are dependent on the EU citizen, or a member of the EU citizen’s household, or have serious health grounds which requires the personal care of the EU citizen, or are the de facto partner of the EU citizen. The circumstances of dependency/membership of the same household/serious health grounds must have existed previously in the country from which the family member came from in order for them to fall into the category of permitted family members.
The Directive and Regulations set out a specific application procedure for the granting of visas and EU Fam residence cards for the family members of the EU citizen. Visas for both qualifying and permitted family members are to be issued by way of an “accelerated procedure” and free of charge. Family members who come within the ambit of the Directive and Regulations are provided with a residence card evidencing their entitlement to reside and work in the State for a five-year period. The Minister is obliged to complete the application process within six months.
Successful applicants must then register at the GNIB, while unsuccessful applicants are entitled to have the decision reviewed by way of the review procedure specified in the Directive and Regulations.
EEA nationals and their family members who have resided in the State for over five years in accordance with the Directive/Regulations may apply for permanent residency, which is evidenced by a Permanent Residence Card..
Family members of EU citizens may acquire a right to retain their residence under the EU Directive and Regulations in the case of separation, divorce and death of the EU citizen. These applications are known as “retention applications”.
We guide clients through all aspects of the EU Treaty Rights pathway, from applying for the initial visa to enter the State, the application for the five year EU Fam residence card, the review procedure, retention applications, removal orders, and in some cases challenging decisions in the High Court by way of Judicial Review litigation where there have been unlawful breaches of the Directive and Regulations and EU Free Movement Law.
We also advise and make applications on client’s behalf in relation to rights and entitlements under EU Free Movement Law and EU case law that do not fall specifically within the ambit of Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015.