Under EU law, EU citizens who are exercising their EU treaty rights by working or actively seeking employment in another EU country have the right to have their family members live with them. However, the position is much less clear for those with dual-nationality EU citizenship, when the EU citizen is living in the country of which they are a citizen.
Regarding the position under Irish law, the INIS website states;
“Please note that we cannot accept applications under EU Treaty Rights provisions from non-EEA family members of Irish nationals. Directive 2004/38/EC on the right of citizens of the EU and their family members to move and reside freely within the territory of the Member States applies only to Union citizens who move to or reside in a Member State other than that of which they are a national.
Exceptions to this apply only in cases where the non-EEA national family member has previously held a residence card of a family member of a Union citizen which has been issued by another Member State under Article 10 of the Directive.”
The issue came to a head in the 2011 UK case of McCarthy v Secretary of State for the Home Department, in which Mrs McCarthy was a dual national of the United Kingdom and Ireland. The European Court of Justice held that Mrs McCarthy could not exercise her EU Treaty rights so that her Jamaican spouse could live with her in the UK. The court held that Directive 2004/38 only applies to those EU citizens who have exercised their right of free movement within the EU. Therefore, the fact Mrs McCarthy had not moved between EU Member State was sufficient to exclude her from Directive 2004/38, and she had to exhaust the national remedies under UK domestic immigration law.
Many believe that this approach- that one loses their EU rights after becoming a citizen of the EU state one is living in- is wrong.
In May of this year, the European Court of Justice recently gave judgment in a similar case. Lounes C-165/16 concerned a Spanish citizen who was living and working in the UK and eventually naturalised as British. She applied for a residence card for her Algerian husband under EU law. The High Court asked the ECJ whether
“…Where a Spanish national and Union citizen:
- moves to the United Kingdom, in the exercise of her right to free movement under Directive 2004/38/EC (1); and
- resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive 2004/38/EC; and
iii. subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
- several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom;
are she and her spouse both beneficiaries of Directive 2004/38/EC, within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?”
The ECJ responded that the couple were not beneficiaries under the Directive. However, they ruled that the conditions for finding a derived right of residence for family members under domestic law should not be stricter than those provided under the EU Directive.
This means that dual nationals should not suffer any more difficulties in obtaining rights of residence for their family members than if they were nationals of one EU country.
However, in Ireland, it is often the case that Irish citizens have higher financial thresholds to overcome than EU citizens, when it comes to applying for family members to join them in the State.
The INIS Policy Document on Family Reunification states that Irish citizens, in order to sponsor an immediate family member
“must not have been totally or predominantly reliant on benefits from the Irish State for a continuous period in excess of 2 years immediately prior to the application and must over the three year period prior to application have earned a cumulative gross income over and above any State benefits of not less than €40k.”
We hope that Irish Government will take the Lounes judgment into account and bring the requirements for family reunification of non-EEA nationals with Irish nationals in line with the EU Directive.
We look forward to any comments or questions you may have on this case.