EUTR3 or EUTR5?

[O'Ramires]

Asking for a friend who's not on this board.

She got married to an EU Citizen in 2018, but they separated in 2022.

They haven't started their divorce proceedings as of now, but her Stamp 4 EuFam visa is expiring in 2024, February. She communicated the Eu Rights department of their separation when the decision was final.

Does she need to apply for the EUTR5 or should she apply for a Permanent Residence Card (EUTR3)?
Thanks

[Angel99]

Since they haven't divorced yet she is not eligible for retention of status. She has to apply for permanent residence card. It will be her own interest to start the divorce proceedings after she has the permanent residence or before the divorce is finalised. With this after divorce, she doesn't need to apply for retention and EUTR can not put her on review. She can just apply for naturalisation.

[AlmostIrish_111]

Sorry but the advise given above is incorrect.

On item C of Section 3.1 in the EUTR5 form states as a valid reason to request the retention of the EUFAM visa to be:

"Divorce or annulment of marriage to the EEA national, or annulment or dissolution of civil
partnership with the EEA national" therefore the separation may be classified as the dissolution of civil partnership.

Also on the EUTR5 Explanatory leaflet it is stated the following:

When do I qualify to retain a right of residence under EU Treaty Rights?
A. Divorce or annulment of marriage
To retain a right of residence after divorce or annulment of marriage or annulment or dissolution of a civil partnership under Regulation 10 of the Regulations of 2015 an applicant must meet one of the following criteria.
i. Prior to initiation of the divorce, annulment or dissolution proceedings, the marriage or recognised civil partnership lasted at least three years, including one year in the State, and the EEA national was exercising their EU Treaty Rights in the State at the time that the decree of divorce, annulment or dissolution was made.

Your friend must first submit EUTR5, have it approved and when the current visa expires, then apply for a permanent visa under EUTR3. Your friend did well to communicate that the Department but now she needs to apply for the retention of the visa to maintain her right to be in Ireland.

Just a heads up, the approval process is long and in some cases the Department will review if the non-EU citizen should have been granted the visa to begin with.

Good luck and hope all goes well.

[Angel99]

Sorry but the advise given above is incorrect.

On item C of Section 3.1 in the EUTR5 form states as a valid reason to request the retention of the EUFAM visa to be:

"Divorce or annulment of marriage to the EEA national, or annulment or dissolution of civil
partnership with the EEA national" therefore the separation may be classified as the dissolution of civil partnership.

Also on the EUTR5 Explanatory leaflet it is stated the following:

When do I qualify to retain a right of residence under EU Treaty Rights?
A. Divorce or annulment of marriage
To retain a right of residence after divorce or annulment of marriage or annulment or dissolution of a civil partnership under Regulation 10 of the Regulations of 2015 an applicant must meet one of the following criteria.
i. Prior to initiation of the divorce, annulment or dissolution proceedings, the marriage or recognised civil partnership lasted at least three years, including one year in the State, and the EEA national was exercising their EU Treaty Rights in the State at the time that the decree of divorce, annulment or dissolution was made.

Your friend must first submit EUTR5, have it approved and when the current visa expires, then apply for a permanent visa under EUTR3. Your friend did well to communicate that the Department but now she needs to apply for the retention of the visa to maintain her right to be in Ireland.

Just a heads up, the approval process is long and in some cases the Department will review if the non-EU citizen should have been granted the visa to begin with.

Good luck and hope all goes well.

It looks like you are confusing yourself with dissolution of marriage, annulment and divorce. In order to file for retention of status you need a divorce certificate. You are allowed to separate from the marriage for sometime to solve matters and if you wish you can continue the marriage.

You can not apply for retention unless separation has lasted for some years which will conclude the marriage has dissolved. However they mostly request for divorce certificate. Someone had similar problem and they rejected retention because he is still married to the EEA national even when separated. They requested him to process the divorce before.


As i said it will be her own interest if she gets the permanent residence because she won't need to review her status.

[Angel99]

To add, they are married couples not partners. They need a decree of dissolution or annulment from the court. You can not officially or legally separate from each other by mutual terms and apply for retention unless they were partners.

They must separate for atleast 2 years to even initiate divorce unless they had gone for a separation agreement from the court which is the same as dissolution of marriage.

A. Category A - Your EEA national family member has died.
B. Category B - Your EEA national family member has died or departed the State and you
have custody of the children of the EEA national who are in education in the State.
C. Category C - Your marriage or civil partnership to the EEA national has legally ended in
divorce, annulment or dissolution.

[AlmostIrish_111]

@angel99, thank you for your explanation on your points.

I raised these items not out of confusion on my part but out of experience. I know of two 3 separate cases of separation, so not being a solicitor I can only suggest the forms based on cases I know of.

1st case: Married couple (married overseas), the EU national left Ireland and even without the divorce the non-EU applied for retention and was granted.

2nd case: Married couple (married overseas), got divorced overseas where they had originally gotten married and the non-EU citizen kept her visa even without applying through EUTR5 because the Irish government does not recognize the divorce.

3rd case: Married couple (married overseas), got separated and non-EU applied for retention through EUTR5, however this one I do not remember the outcome but I can check, all I know is that the non-EU is still living legally in Ireland.

[Angel99]

@angel99, thank you for your explanation on your points.

I raised these items not out of confusion on my part but out of experience. I know of two 3 separate cases of separation, so not being a solicitor I can only suggest the forms based on cases I know of.

1st case: Married couple (married overseas), the EU national left Ireland and even without the divorce the non-EU applied for retention and was granted.

2nd case: Married couple (married overseas), got divorced overseas where they had originally gotten married and the non-EU citizen kept her visa even without applying through EUTR5 because the Irish government does not recognize the divorce.

3rd case: Married couple (married overseas), got separated and non-EU applied for retention through EUTR5, however this one I do not remember the outcome but I can check, all I know is that the non-EU is still living legally in Ireland.

The first case will be granted because the EU citizen left the state without divorce. This means they are still married but the Freedom of Persons Directive has stopped. The immigration department will then take the non EU spouse activities in the state into consideration and if they had children and how long the marriage lasted.

The second case, the person was just fortunate. Because divorce abroad is supposed to be recognised same as the marriage was also recognised previously in the state. If the state doesn't recognised the divorce technically they are still considered married. I believe in this case the EU citizen also left the state.

The third one is also similar to the 2 above.

When the EU citizen leaves the state for sometime it triggers eligibility for retention of status for the non EU spouse.

As I said if she hasn't divorced yet or had a separate decree from the court and the EU citizen is still exercising his rights in the state, she is not eligible for retention of status. The best advise for her is to apply for permanent residence card so she can be on her own rights without review after legal separation.

[Angel99]

Unless there was domestic violence involved with evidence then they can consider rentention of status without legal separation.


Just by the way->
Note after 3 years of marriage the non EU spouse can not be deported even if separation by mutual agreement unless some serious criminal offence.
In some countries like Germany, after 3 years of marriage to the EU citizen, you are allowed to keep your Aufenthatskarte-EU after separation or divorce even if none EU is unemployed without any immigration review.

[AlmostIrish_111]

Thank you for the clarification @angel99.