EU2 or WABC?

[jimmiesettler]

Hi, I hope someone can help.
My wife is a UK Citizen who came to live in Ireland at the end of 2014. I joined her from South Africa and have been granted Permanent Residence in Ireland.

My wife recently got a very good job offer in Portugal.
As I understand, because she came here to Ireland, an EU state, before Brexit, and has been here for more than 5 years, she still retains her free movement rights to go work and live in another EU state.

To prove that she has this right, should she apply for a EU2 permanent residence as a someone who was an EU citizen and present in the state for 5 years befofe brexit or will a Withdrawal Beneficiary Agreement Card prove the same right? Does the WABC card act as a decloratory permanent residence?

Thank you

[Obie]

Your wife does not retain her freemovement rights to move around the EU. She only retain it as regards to Ireland.

If you are moving to Portugal, she will need to apply for permission for you both, unless she applies for and qualify for Irish citizenship.

[jimmiesettler]

As far as I understand that's true for UK citizens who have been here under 5 years before the transition period ended. If she has been here for 5 years as an EU citizen, which she was, she retains the right to free movement due to being a long term resident of a member state, which I think will be EU2 :

https://www.politico.eu/article/brits-r ... nt-rights/

https://ukandeu.ac.uk/explainers/uk-cit ... d-to-know/ :
especially this - "Can these people move to another EU country?

Not permanently. The Withdrawal Agreement gives UK Citizens the right to live permanently only in the EU country of which they were legally resident as of 31 December 2020.

That right is lost if an individual is absent from their EU country of residence for more than five years.

A UK citizen with permanent residence rights in one EU country would have to comply with national migration processes for third country migrants to move to another – the same rules that apply to people moving from the UK.

However, under a separate EU Directive, once a UK citizen (or any other third country national) has been resident in a member state for five years, they obtain to the right to move to another member state for longer than three months for purposes of employment, study or training."

[Obie]

Well unfortunately your interpretation is not correct.
As a result of Brexit, freemovement ends, however those who remained in an EU state exercising treaty rights as at 31-12-2020 retain their rights as related to that state and not the 27.

[jimmiesettler]

Did you read the articles? I am not interpreting, I am merely stating the words exactly as they appear in the article? :
"However, under a separate EU Directive, once a UK citizen (or any other third country national) has been resident in a member state for five years, they obtain to the right to move to another member state for longer than three months for purposes of employment, study or training."

[Obie]

Yes I read it, but that separate directive does not apply to UK, Ireland or Denmark, it applies mostly to schengen states, so it will not assist you or your wife. Had you been resident in a country like Netherlands for 5 years and now moving to Portugal, then it would have applied.

Unfortunately the article is not very detailed about the nations exempted from that Directive.

To ensure there are no disruption to your plan move, It may assist if your wife would start discussing visa options, and make arrangements for it in good time.

[jimmiesettler]

I see what you mean.

What about the fact that I have permanent residence in Ireland? I spoke to a Portuguese immigration lawyer who said I can move to Portugal without a Visa under article 116. I went to Portugal in September without a Schengen Visa and the border police didn't have any problems. When they stamped my Passport, there was also no mention of a maximum stay.

Also, we have a child born in Ireland who had an Irish passport, can we not go on EU treaty rights.

[littlerr]

Irish permanent residency is valid in Ireland only.

And your kids have nothing to do with EU Treaty, regardless of where they were born. As Obie said, unless you have lived in a different EU country for more than 5 years, you cannot exercise EU Treaty.

[Obie]

I see what you mean.

What about the fact that I have permanent residence in Ireland? I spoke to a Portuguese immigration lawyer who said I can move to Portugal without a Visa under article 116. I went to Portugal in September without a Schengen Visa and the border police didn't have any problems. When they stamped my Passport, there was also no mention of a maximum stay.

Also, we have a child born in Ireland who had an Irish passport, can we not go on EU treaty rights.

I do not do know what Article 116 the lawyer is talking about. All i can say is the directive he mentioned, clearly does not apply to you and there is no free movement as far as you and your wife are concerned. Either of you do not have independent free movement rights..

However, as you have brought an Irish child in the equation, and provided you can show sufficient resources and Medical insurance for your entire family, I believe the CJEU case of Chen, may be applicable to your case, and in that regards, I may have to amend my advise.

[jimmiesettler]

Article 116 is a Portuguese Article dealing with their aliens act:
https://imigrante.sef.pt/en/solicitar/residir/art116/

How does the Chen judgement work?

[Obie]

I dont know what more I can say really.

As Recital 25 and 26 states, UK when it was a member, Ireland or Denmark are not party to that Directive.

https://eur-lex.europa.eu/legal-content ... 09&from=EN

[jimmiesettler]

Yes, I completely get your point in that regard.
None of the articles mentioned that Ireland wasn't included in the Treaty.

How do we claim residence based on Chen, just move there and then invoke that judgement in our application?
Like I said, the Portuguese border control gave me no trouble entering on a Stamp 4 whatsoever.

[Obie]

None of the articles mentioned that Ireland wasn't included in the Treaty.

It clearly does:

(25) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application.

(26) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive, and is not bound by it or subject to its application,

A Portuguese official mistakingly applying a law does not make it the law, or form a basis for arguing that a particular piece of legislation is applicable to you.

[jimmiesettler]

Sorry, I meant the articles I originally quoted, not the actual directive you sent me.
I meant the article on Politico and the other website.

You are correct in your interpretation.

[Shakey]

Can I suggest both of you apply for citizenship? Will make your life a lot easier.

[jimmiesettler]

It would make our life a lot easier, but:

1. I am currently on benefits, so probably won't get a passport.
2. The job offer she got is amazing, but they will not wait for 2 years whilst she waits for an Irish passport.
3. We want to get away from this terrible kip of a country as soon as possible hahah.

I think a Portuguese work visa will be the best option, but we're working through a Portuguese Immigration Lawyer, we'll get sorted.

[Obie]

I think Ireland is a nice country. I spend my time in both UK and Ireland, and I can say for sure I prefer Ireland.

I can understand you wish to go to Portugal, but that is not a reason to dis Ireland.

You should come to UK, and listen to its xenophobia press and the hostility faced by Immigrant, then you will appreciate Ireland.

[jimmiesettler]

I lived in the UK for 6 years when I was younger, met my wife there, Ireland is a lot better, the people are amazing and I have made some of the best friends ever here in the last 6 years. (my life seems to move in 6 year cycles)
I do agree, I'm probably being harsh to Ireland, but
A. I can't stand the weather anymore. Everything is wet, constantly. When I take clothes out of my wardrobe, they're damp to the touch,
B. I can never afford property here, but we actually purchased property in Portugal. What we purchased there would cost about 8x as much here. And the salary my wife is going to get there puts anything she ever got in Ireland to absolute shame.

I also think the current FF/FG solution is ruining it.
AND there's a LOT less Covid in Portugal at the moment.

[Obie]

I agree the weather is a bit problematic, due to the position of Ireland on the North Atlantic.

If it was not for the weather and the fact that my field of work has more demand in UK than in Ireland, I will spend the majority of my time in Ireland.

Buying a home is problematic, I agree. I have spent a lot in aquiring a hope, but face disappointment each time. I agree the attraction with Portugal.

If you have money and a job available, and with your Irish citizen child, you have automatic right to enter Portugal. Once there open and account and apply for residence card.

Chen is binding in Portugal.

[jimmiesettler]

I actually used to love the Irish weather, but I think I am getting a big grumpy the older I get. I'm tired of wet shoes hahah.

For buying a home, may I suggest, if you haven't tried, your local Credit Union. We were very close to actually buying something, our mortgage was pre-approved, when Covid hit and destroyed all of our plans. Form a good relationship with the loan officer at your local Credit Union and you'd be surprised how far they will go to help you. They are way more personable than a bank, and actually care about the community.

That's good news about Chen, but what do you mean it's binding?

[Obie]

Thanks for the advice on the credit Union.

I believe with Brexit and all the nonsense taking place in the UK, there is a great deal of opportunities in Ireland.

By binding, I mean it is part of the law of the land, and court's and Tribunal are aware of your right to residence through that route, provided there is medical insurance and sufficient resources for the entire family..

[jimmiesettler]

Open an account with the Credit Union and start saving in it. After about 6 months, get a small loan, something like 500 Euro and instead of paying it off in 2 years, pay it off in 2 or 3 months. Then keep saving, wait a couple of more months and get a bigger loan, say 2000 and pay that off in about 6 months or less.
This will prove you are trustworthy and pay back your debts. Keep saving enough for a deposit in there and then go talk to your local loan officer.

So when we apply for a residence card, do we mention Chen in the application, or will they just see by the evidence we submit that it is a Chen case?
Thanks for all your good advice, you are golden

You help everyone on this board so much.
If there is a God and karma, you will get that house with the Credit Union. I sincerely hope so.

[Obie]

When you make your case, you need to explain how the relevant legal requirements are met, and provide the necessary documentation to show it is met.

[Shakey]

It would make our life a lot easier, but:

1. I am currently on benefits, so probably won't get a passport.
2. The job offer she got is amazing, but they will not wait for 2 years whilst she waits for an Irish passport.
3. We want to get away from this terrible kip of a country as soon as possible hahah.

I think a Portuguese work visa will be the best option, but we're working through a Portuguese Immigration Lawyer, we'll get sorted.

Please don't take offense but your example is exactly why I would always recommend anyone who has the chance of gaining a second citizenship to do so. If your wife has been resident since 2014 she could already be a citizen and none of the issues you are now experiencing would be swatted away.

[jimmiesettler]

You are correct there, Shakey. There were certain personal circumstances that prevented us from doing that in late 2019, which was when she would have first been eligible.

Hindsight is 20/20. But hey-ho, here we are, we will soldier on.