kevo wrote:thanks for the reply
however, i disagree with you in that she does have an entitlement to Irish residency under the Constitution (based on a real marriage to an Irishman)
12 to 18 months is a pretty long wait but what can you do i suppose
cheers mate
you can disagree all you want europe (both ecj and echr) and english (which is persuasive) says different. no constitutional right is absolute, the case of lobe 2003 is a fine example. a refugee and a fellow eu citizen exercising their right to enter this state have more statutory rights to family reunification than an irish citizen married to a non national. the consitution provides the basic law, but the cnstituion must be read in full. a the moment there is no statute that provides such rights. the following is the agreed summary of case law has provided over the past 20 years
(1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.
(2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.
(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.
(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.
(5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.
(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on
(i) the facts of the particular case and
(ii) the circumstances prevailing in the State whose action is impugned
the folowing passages taken from the 2006 edition of the imigrant council's handbook entitled family matters:
Categories Rights to Family Reunification
Family members of Under EU law family members of EU citizens, who
European migrant move within the EU to work, can join the EU
workers citizen regardless of their own nationality.
Refugees Under Irish law a refugee is entitled to be joined
by their spouse and unmarried dependent
children under the age of 18 years old or, in the
case of a refugee who is a minor, by the refugee’s
parents. They lose these rights if they become
naturalised Irish citizens.
Irish nationals and There is currently no law on the right of Irish
other migrants citizens, and all other migrants, to have family
resident in Ireland members join them in Ireland and therefore no
application for family reunification is guaranteed.
All other legal residents: Irish citizens, non-EU workers and other residents
In stark contrast to refugees and migrant EU citizens, the right of Irish citizens
and all other migrants in Ireland to have a family member come here to join them
is not provided for by legislation and is not guaranteed. The closest Irish law gets
to conferring a right to enter or remain for the purposes of family reunification is
found in the rather vague provisions of section 4 of the Immigration Act, 2004.
This section requires an immigration officer to have regard to the family
relationships the person has with people already resident in Ireland in deciding
whether to allow someone permission to enter the country.
Despite the absence of specific laws and rules, it is generally accepted that the
family members of individuals who are legally resident in Ireland are allowed to
apply for family reunification with their spouse and minor dependent children.
However, permission to apply does not in any way mean a person has an
automatic right to family reunification. If family reunification is granted, it is at
the absolute discretion of the Minister for Justice and decided on a case-by-case
basis.50 The Department of Justice has never issued any definitive statement of
the policy underpinning how applications are considered. However, from the ICI’s
experience of monitoring many applications, it is nonetheless apparent that
individual applications are generally influenced by the residency status of the
family member already in Ireland, and whether the applicant is required to have
a visa to enter this country.
The policy or administrative position in relation to family reunification is clearest
for people from outside the EU and the European Economic Area (EEA)51 who have
permission to work in Ireland.52 Despite this, the family reunification rights of
migrant workers from outside of the EEA are not uniform and may be significantly
affected by whether they need a visa to enter Ireland and what economic sector
they are working in.
For example, for someone who holds a work authorisation,53 their spouse and
minor dependent children can immediately accompany them to Ireland. In
contrast to this, people who hold working visas54 may only apply for their spouse and/or minor dependent children to join them once they have been here for three
months. The only difference between both categories of workers is the fact that
a person with a working visa requires a visa to enter Ireland.
In further contrast to this, and more notably, in the case of people with work
permits55 an application can only be made for a spouse or minor children to join
them as a dependent after the person has been working in Ireland for 12 months.
However, although work permit holders are theoretically permitted to apply for
family reunification after 12 months, evidence from those accessing the ICI’s
Information and Support Service and those involved in this study, shows that
many applications are refused in practice.
an application will hve to be made. to quash any suspicion of marriage of convenience, best advise would be to provide evidence of a long establshed relationship prior to marriage. eg joint bank statements, tenancy agreements etc
best of luck though.
