Irish visa for Russian wife

[macsbac]

Hi all,

I am living in Northern Ireland with my Russian wife of over 2 years. I have both Irish and British passports as I am entitled to. My wife lived in Donegal for over 7 years on a student visa. She has her permanent residence to remain and had a multiple entry Irish visa lasting till the end of her limited residence to remain. Her Irish visa was free as she was the spouse of an EU citizen however today we have been told we must apply in London and pay 80 quid. While this does not seam like much we have a new born baby, who we need to get a passport and Russian visa, plus a Russian visa for myself bringing the total to nearly 300 quid. We want to travel through Dublin as it would give us a direct flight then same day connection to my wifes home city. Through London would mean 3 flights and an overnite saty in either london or Moscow. I thought we where entitled to this visa free of charge as before. I believe there was a court case challenging Irelands implementation of directive 2004/38/EC on te 3rd of June 2008. Does this impact me and my wife.

[ca.funke]

Hi there,

you are entitled to Visas free of charge, where 2004/38/EC applies.

In countries of which you have the nationality (in your case Irish / British) 2004/38/EC does not apply.

See article 3, section 1:

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 national, and to their family members (...) who
accompany or join them.

This means, that your Visa application(s) within Ireland and the UK will be treated according to their (less favourable) respective national laws.


In a similar case, I lodged a complaint with the European Commission. The reply I got was this: (It was in German, I'll translate to my best:)

EU-Citizens, who have their place of residence in the country of which they posess the nationality, cannot claim to be treated according to this law, unlike EU-citizens who exercised their treaty-rights and moved to another member-state.

However, the European Court of Justice (ECJ) decided that these rights can also be exercised by citizens, who left their country of citizenship and later returned to their home-country, as well as those EU-citizens who exercised their rights as protected by the treaty without being resident in another member-state (for example by supplying a service in another member-state, while keeping the usual place of residence in their home member-state).

Unfortunately it will be very difficult to use this information in practice, as no-one cares. (That's my personal experience)


In your case all of this does not apply, as you have British and Irish nationalities, and lived in these two places (only).

That's all I know about this. Sorry if it doesn't sound very good, Regards, Christian

[Ben]

Just checking, but both you and your wife live together, in Northern Ireland, and she has Indefinite Leave to Remain in the UK, yes?

[macsbac]

Yeah she just got indefinite leave to remain. I have both Irish and British citizenship and she has Indefinite Leave to Remain in the UK.

So you are correct in all counts.

[Ben]

Was her ILR in the UK issued in accordance with EU regulations, following a 5 year Residence Card, issued to her as the husband of an Irish citizen?

[John56477]

First, congrats on the wee baby, hope all are well.

Secondly, From Irish Department of Foreign Affairs Website
http://www.dfa.ie/home/index.aspx?id=8780

From the 1 March 2004 standard non-refundable Visa Application Processing Fees apply as follows:

Single Journey €60
Multiple Journey €100
Transit €25

Some applicants are not required to pay a fee. This includes Visa required spouses and certain family
members of EEA citizens (including Irish nationals) provided that proof of the relationship is provided with the application.

[mym]

Tell them to read their own laws.

Specifically sEction 4.2 of S.I. No. 656 of 2006 'European Communities (Free Movement of Persons) (No. 2) Regulations 2006'

Permission for Union citizens and qualifying family members to enter the State...

(2) A qualifying family member of a Union citizen 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 -
(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.

(3) (a) A qualifying family member, who is a member of a class of non-nationals 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 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 that visa shall be issued free of charge.

[Ben]

I'm not sure that a visa would be required anyway. The couple are excising Treaty rights, and the Russian spouse even has ILR in the UK.

To quote Directive 2004/38/EC, Article 5(4):

4. Where a Union citizen, or a family member who is not a national 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 corroborate or prove by other means that they are covered by the right of free movement and residence.

Certainly departing the UK over land, entering ROI and flying out of Dublin airport will incur no problem. On flying back in to Dublin, however, is where the GNIB might need persuading that a visa-required national should be allowed entry into the country without a visa.

Proof by other means that they are covered by the right of free movement and residence, should, in my opinion, be in the form of the couples' marriage certificate, both the husband's Irish and British passports, perhaps proof of address in Northern Ireland, perhaps return bus/train tickets back to Northern Ireland also.

"Proof by other means" is, of course, open to interpretation. However, in my opinion, I can't see a GNIB officer in Dublin airport refusing entry to an EU/non-EU couple, who are clearly covered by EU regulations, and who in any case are merely transiting in ROI on their way home to the UK.

[mym]

Agreed.

[ca.funke]

(...) The couple are excising Treaty rights (...)

HI Benifa,

unfortunately, this couple does not excersise treaty rights.

As the EU-citizen has UK and Irish citizenship, and these are the only two places where they ever lived, they never excercised treaty-rights.

I hope this won't be the catch, but as far as I can see it is...

...if not, please let me know why this is NOT the catch.

Thanks and regards, Christian

[Ben]

(...)The couple are excising Treaty rights

HI Benifa,

unfortunately, this couple does not excersise treaty rights.

As the EU-citizen has UK and Irish citizenship, and these are the only two places where they ever lived, they never excercised treaty-rights.

When the couple are in ROI, they are exercising EU Treaty rights since the husband is a British citizen (irrespective of the fact that he also happens to be an Irish citizen).

When the couple are in the UK, they are exercising EU Treaty rights since the husband is an Irish citizen (irrespective of the fact that he also happens to be a British citizen).

[ca.funke]

When the couple are in ROI, they are exercising EU Treaty rights since the husband is a British citizen (irrespective of the fact that he also happens to be an Irish citizen).

When the couple are in the UK, they are exercising EU Treaty rights since the husband is an Irish citizen (irrespective of the fact that he also happens to be a British citizen).

Hi benifa,

I hope this logic works.

I am German / Belgian.

When I tried to apply for a visa in the German embassy for my Lebanese wife, I was told this will be treated according to German law, as I am (also) German.

In Germany it is possible to have dual-citizenship, however German authorities will always consider me German (only), when I deal with them.

For example, if I am arrested in Germany, I can not claim the right to talk to "my" embassy (the Belgian one), as I am German.

For Belgium it is exactly the same.

As a solution, we applied for a Schengen-Visa at the Austrian embassy in Dublin. That went easy

Now, I would be seriously surprised if this was much different in the Irish/UK-case.

Just to make the point: I hope I'm wrong, but I fear I'm not.

That's how authorities think.

Well - I'll follow this thread to find out about the outcome. Good luck!!

Rgds, Christian

[yankeegirl]

When the couple are in ROI, they are exercising EU Treaty rights since the husband is a British citizen (irrespective of the fact that he also happens to be an Irish citizen).

When the couple are in the UK, they are exercising EU Treaty rights since the husband is an Irish citizen (irrespective of the fact that he also happens to be a British citizen).

As far as I know, benifa is correct, at least on the UK side of things. I'm not 100% sure how the Irish would look at it, but I would imagine it would be the same as the UK.

The Northern Ireland Law Center used to have a page on their wesite detailing that it was ok for an Irish.British dual citizen to sponser a spouse etiher using the UK rules or the EU regulations (on the basis of Irish citizenship). If they sponser under the EU regulations, they simply use the Irish passport. They're in the process of updating this, so it's down for the moment. The DSP's on UKVisas don't appear to be available anymore but I remember they used to clearly state that if a UK/other EU dual citizen was to be a sponser under EU regulations on the basis of their other citizenship, that was their choice to do so, regardless of the fact that they also held British citizenship.

It is interesting that it isn't the same in Germany. I wonder if politics plays into it at all. (this is just pure speculation on my part). While many people in Northern Ireland are dual citizens, some choose to only identify themselves as one or the other. I have quite a few friends that only consider themselves Irish, and would never dream of refering to themselves as a British citizen or hold a British passport, even though it doesn't negate the fact that they are still dual citizens whether they acknowledge it or not. I have other friends that are the opposite, they consider themselves solely British even though they also would be considered dual citizens. I think it would be a bit of a sticky situation of they were "forced" to only be British, for example.

[macsbac]

Was her ILR in the UK issued in accordance with EU regulations, following a 5 year Residence Card, issued to her as the husband of an Irish citizen?

No we did not get it like this. My wife came here on a 6 month fiance visa fromthe Republic of Ireland. After we where married she got a 2 year limited residency to remain. Then when this expired she got her permanent residence to remain only in April. I think this is in accordance to UK immigration law not in accordance with EU regulations following a 5 year residence card.


However yet more development today from the justice department in the republic.

"You can apply for a Residence Card based on your marriage to an EU Citizen.Also as your spouse is an Irish Citizen you can go directly to your localimmigration office with your spouse, both passports and evidence of yourmarriage to have your passport endorsed with the necessary permission toreside in the State without having to make an application under EU TreatyRights. With regard to any queries you have on Citizenship you can accessinformation on the website inis.gov.ie"

I have sent them a few questions in this regard. Though am I right in thinking me and my wife head to the nearest Immigration with passports and our marrige certificate and get a stamp. This seams too easy.

[mym]

Is there any reason why she has not applied for a british passport? It would simplify things. Now she is married ot you and has ILR she can apply on any day exactly three years after a day on which she was legally in the UK (in any capacity, even as a visitor).

If she is a Russian Federation citizen she can hold dual citizenship with the UK.

[macsbac]

Is there any reason why she has not applied for a british passport? It would simplify things. Now she is married ot you and has ILR she can apply on any day exactly three years after a day on which she was legally in the UK (in any capacity, even as a visitor).

If she is a Russian Federation citizen she can hold dual citizenship with the UK.

She will not be entiltled to apply for a British passport until next February when she entered under her finace visa.

[mym]

Was that the first time she was ever in the uk?

Now she is married to you and has ILR she can apply on any day exactly three years or more after a day on which she was legally in the UK (in any capacity, even as a visitor).

[Ben]

I am German / Belgian.

When I tried to apply for a visa in the German embassy for my Lebanese wife, I was told this will be treated according to German law, as I am (also) German.

In Germany it is possible to have dual-citizenship, however German authorities will always consider me German (only), when I deal with them.

How did the German authorities know that you are also a German citizen? Did you volunteer this information? Directive 2004/38/EC does not require disclosure of other citizenships held by the EEA/Swiss citizen exercising Treaty rights. As a Belgian citizen working in Germany, you would be exercising Treaty rights, irrespective of the fact that you are also a German citizen.

For example, if I am arrested in Germany, I can not claim the right to talk to "my" embassy (the Belgian one), as I am German.

For Belgium it is exactly the same.

This doesn't surprise me. My British passport states something similar, to my recollection, that a British mission overseas cannot provide consular assistance to a British citizen, if he is also a citizen of that country.

Was her ILR in the UK issued in accordance with EU regulations, following a 5 year Residence Card, issued to her as the husband of an Irish citizen?

No we did not get it like this. My wife came here on a 6 month fiance visa fromthe Republic of Ireland. After we where married she got a 2 year limited residency to remain. Then when this expired she got her permanent residence to remain only in April. I think this is in accordance to UK immigration law not in accordance with EU regulations following a 5 year residence card.

Ok, so your wife's ILR in the UK was acquired through the UK immigration laws, rather than in accordance with Directive 2004/38/EC. Even so, the fact remains you are still exercising EU Treaty rights in the UK, as an Irish citizen, so you both are still covered by Directive 2004/38/EC.

However yet more development today from the justice department in the republic.

"You can apply for a Residence Card based on your marriage to an EU Citizen.Also as your spouse is an Irish Citizen you can go directly to your localimmigration office with your spouse, both passports and evidence of yourmarriage to have your passport endorsed with the necessary permission toreside in the State without having to make an application under EU TreatyRights. With regard to any queries you have on Citizenship you can accessinformation on the website inis.gov.ie"

I have sent them a few questions in this regard. Though am I right in thinking me and my wife head to the nearest Immigration with passports and our marrige certificate and get a stamp. This seams too easy.

It does seem too easy, you're right. Sadly though, it's true. The DoJ make it very easy, quick, and totally stress-free for Irish citizens to live in Ireland with their non-EU spouse. If only the same, painless process were available to other EU citizens resident in Ireland, who also want to enjoy a normal family life with their non-EU spouse. Another example of Ireland ignoring Directive 2004/38/EC. This time, Article 24 (1):

Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

But why does this matter to you, are you planning on moving from Northern Ireland to ROI?

[ca.funke]

I am German / Belgian.

When I tried to apply for a visa in the German embassy for my Lebanese wife, I was told this will be treated according to German law, as I am (also) German.

In Germany it is possible to have dual-citizenship, however German authorities will always consider me German (only), when I deal with them.

How did the German authorities know that you are also a German citizen? Did you volunteer this information? Directive 2004/38/EC does not require disclosure of other citizenships held by the EEA/Swiss citizen exercising Treaty rights. As a Belgian citizen working in Germany, you would be exercising Treaty rights, irrespective of the fact that you are also a German citizen.

Both Germany and Belgium want to know what other nationalities you posess.

While in some cases it may be possible that they don't find out, in my case when I was naturalised in Belgium, Belgium sent a notification about this fact to the German embassy.

And, of course, Belgium also knew that they were naturalising a German guy, who would not loose his old nationality.

So both countries know that I have the respective other nationality, and this information seems to be readily available in the computer systems.

I was told by both sides that 2004/38/EC only applies to me, because I live in Ireland.

In Germany and Belgium I can not exercise treaty-rights. Being a citizen allows me to enter / settle there anyway. My wife is currently treated under national law in either country, which I am contesting with the EU.

As my wife never lived in the EU but outside Ireland (prior residence), Ireland does not want to apply 2004/38/EC also. I am contesting this also, of course.

In 2 more year my wife will be Belgian. Before that she might ironically be deported from Ireland, so we'd have to go somewhere else for the time in-between...

[Ben]

Both Germany and Belgium want to know what other nationalities you posess...

In Germany and Belgium I can not exercise treaty-rights.

I'm open to correction, but I suspect strongly that this practice is totally illegal. As a Belgian citizen in Germany (or vice versa), you have rights in accordance with Directive 2004/38/EC. The host country cannot ignore these rights, simply because you are also a citizen of the host country.

Being a citizen allows me to enter / settle there anyway. My wife is currently treated under national law in either country, which I am contesting with the EU.

I'm sure you know that Surinder Singh conditions apply to you, should you wish to return to Belgium / Germany following your residency in Ireland.

As my wife never lived in the EU but outside the EU (prior residence), Ireland does not want to apply 2004/38/EC also. I am contesting this also, of course.p

Definitely, I noticed your posts on other threads. I look forward to reading a positive result!

In 2 more year my wife will be Belgian. Before that she might ironically be deported from Ireland, so we'd have to go somewhere else for the time in-between...

I'd like to see them try! Can you imagine the headlines? It'd never happen.

[ca.funke]

In 2 more year my wife will be Belgian. Before that she might ironically be deported from Ireland, so we'd have to go somewhere else for the time in-between...

I'd like to see them try! Can you imagine the headlines? It'd never happen.

Unfortunately, it already happened. (Although luckily not in my case)

There is a case of a Polish/Nigerian couple, where the husband has been deported.

They are currently living separated because of this.

This is where you find it, click, second link

In addition, in the case of Mr Igboanusi and Ms Batkowska, the husband, a Nigerian national, is the subject of a deportation order made on 15 September 2005, prior to their marriage. In execution of that order Mr Igboanusi was arrested on 16 November 2007, that is subsequent to the marriage and the refusal of the Minister for Justice to grant him a residence card. On 13 December 2007, Mr Igboanusi and Ms Batkowska were granted leave to make the judicial review application which forms part of the main proceedings. On the same day, the High Court refused to grant an injunction restraining the Minister for Justice from deporting Mr Igboanusi. Mr Igboanusi was deported to Nigeria in December 2007.

Difference to my case is, that my wife joined me here, she came for this reason only, we were married before she came, and she was never subject to a deportation order.

However, legally, I don't see a difference.

[86ti]

While in some cases it may be possible that they don't find out, in my case when I was naturalised in Belgium, Belgium sent a notification about this fact to the German embassy.

And, of course, Belgium also knew that they were naturalising a German guy, who would not loose his old nationality.

How did you obtain the Belgium nationailty? Have you been execersing your treaty rights before you were naturalised?

[ca.funke]

While in some cases it may be possible that they don't find out, in my case when I was naturalised in Belgium, Belgium sent a notification about this fact to the German embassy.

And, of course, Belgium also knew that they were naturalising a German guy, who would not loose his old nationality.

How did you obtain the Belgium nationailty? Have you been execersing your treaty rights before you were naturalised?

Yes - I never thought about it from that perspective.

@ all: My case is not important in this context, I'm only involved with the prior "legal residency".

I only used my example for this UK/Irish case.

And here, the naturalisation-idea does not work, as Irish/UK-citizenship was obtained at birth...?

Or maybe not?

[86ti]

While in some cases it may be possible that they don't find out, in my case when I was naturalised in Belgium, Belgium sent a notification about this fact to the German embassy.

And, of course, Belgium also knew that they were naturalising a German guy, who would not loose his old nationality.

How did you obtain the Belgium nationailty? Have you been execersing your treaty rights before you were naturalised?

Yes - I never thought about it from that perspective.

@ all: My case is not important in this context, I'm only involved with the prior "legal residency".

I only used my example for this UK/Irish case.

And here, the naturalisation-idea does not work, as Irish/UK-citizenship was obtained at birth...?

Or maybe not?

Yes, right. Sorry macsbac for hijacking your thread! Still I hope this discussion is useful to you.

Christian, do Belgium and Germany say that the directive does not apply anymore(!) to you because of obtaining the second nationality?

The reason I ask is, I was wondering what actually happens if you have execercised your treaty right in the past but then e.g. decided to leave Europe and come back after some years again. Would you be subject to national laws again making your treaty rights of the past useless?

[macsbac]

Just for an update.

My wife can get her passport stamped in my presence with proof of marriage in an immigration office in the Republic. This has been verified by the department of justice.

However she will need a visa to enter the republic to get her passport stamped.

We have to apply for the Irish visa in the Irish embassy in London (we can do this online) however they told us there was a 100 euro charge and we did have to pay it. However our contact in the department of justice pointed out this morning that they are incorrect and as pointed out by mym.

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 that visa shall be issued free of charge.

Our contact at the department of justice then contacted the supervisor in the Irish embassey in London and pointed out the situation. Now in London they agree we are entiled to the visa for free and for our application to be accelerated.

As a result of this our plan of action is to apply for a three year multiple entry Irish visa which we are entiled to free and at an accelerated rate. We have no need for the stamp as my wife can get a British passport in about 10 months, long before the visa runs out.

My conclusions are immigration law is very unclear, so much so that many people gicving out visas in embassies do not even know what people are entitled to or what the law is. Though in fairness the Department of Justice responded in a timely and very clear manner. They then went on to clarify the situation with relevant Irish embassey in London. I really did not expect them to be so helpfull (a real improvement since McDowell left office).

Though I would really like to thank everyone who responded and tried to help us.

PS: 86ti I have no problem with you hijacking my thread, its all very interesting.