The following is the query I sent to Your Europe Advice service
I wish to exercise my treaty rights and travel to Ireland. It is also my wish that my non-EEA partner travel with me.
With this in mind we applied to the London Embassy of Ireland for a visa. The application was returned with a letter saying they could not process the application because we did not submit all documents required.
Item 4 in their list, evidence that she had permission to return to the UK for at least 3 months after the visa had expired.
The guidelines on 2004/38/EC stipulate that only passport and proof of relationship can be asked for so I feel Item 4 in not applicable.
Item 9 proof of durable relationship, and they give a list of acceptable documents to prove co-habitation for at least 2 years.
The guidelines say they should not oblige partners to demonstrate the durability by presenting only a set of 'acceptable' documents also that national rules may not rely exclusively on the element of duration to the exclusion of other elements that relate to the family link.
We supplied 2 affidavits that had been sworn in front of a Commissioner of oaths along with other items and feel that these legally recognised documents should be acceptable.
Our problem is that 'cannot process your application' is used to circumvent the right of appeal which would be present in the event of a 'refusal to issue' situation.
Our situation now is that my treaty rights are being deterred by failure to issue my partner an entry visa.
Reply received
Mr. XXXXXX
Thank you for your enquiry to the Your Europe Advice service.
You are correct. Your partner should only be required to present her passport and evidence of the durability of your relationship to be granted a short term visa to enter Ireland (Articles 8.2 and 10.5 of Directive 2004/38/EC). She should not be required to present evidence of her permission to return to the UK. Your partner s visa should be issued as soon as possible and without formality or charge. It is also true that your partner should be able to present documentary evidence of your partnership by any appropriate means. The Irish authorities should not be prescriptive about the evidence of durability of the relationship that they will accept. Partners with whom the EU citizen has a durable relationship are covered by Article 3.2.b of Directive 2004/38/EC.
The decision on the visa should be made within a maximum period of four weeks by analogy with Article 23 of Regulation 810/2009/EC. The refusal to issue a decision is also a matter of concern here.
To try to resolve the current impasse, I recommend that you refer this matter to SOLVIT. This is an EU network established to resolve problems caused by misapplication of EU law by public administrations. The service is free of charge. You can obtain further information about the SOLVIT service and download an online complaint form using the following website:
www.ec.europa.eu/solvit/
I trust that the above information is of assistance to you. Should you have any further queries in relation to your rights in the EU, please do not hesitate to revert to the Your Europe Advice service.
Yours sincerely,
Your Europe Advice
I have taken Your Europe Advice services advice and referred this matter to Solvit.
It might be of some use to forum members that the Irish Embassy cannot ask for evidence that the applicant has permission to return to where they come from. Iten 4 in their list is not applicable under the directive.
