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Child of British Citizen born in Ireland

Forum to discuss all things Blarney | Ireland immigration

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, Administrator

Obie
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Ireland

Post by Obie » Fri Jun 19, 2009 12:08 pm

Directive/2004/38/EC wrote: Sorry, but I (somewhat) disagree.

Remember that the non-EU spouse will not have a Residence Card for at least 6 months after the EU spouse gets a job.

And since the UK does not recognize Residence Cards issued by other member states, this is in any case problematic.

In any case, in the period of time before the baby comes there is no chance of a Residence Card.

So they either have to apply for an EEA family permit (i.e. a visa) when they are in Ireland and working, or they have to have the visa issued at the border (if the UK requires that when they enter the UK).
The British insists that the British national should have resident with the non-EEA spouse in another member state where he/she was exercising a treaty rights as a worker or self employed person for a minimum of 6 months before the British national will be considered a migrant worker under EU law. EEA family permit will not be issued until that 6 months criteria has been met.

I couldn't see any element of the Signh ruling that specifically states 6 months. I think that can be contested. So long as the British national has been working for a reasonable period of time, i think that should suffice.

I think the best bet is to get a visa for Northern Ireland and give birth there. Meanwhile the husband could try and get a job in Ireland and the wife can come and join her after the baby is born.

She can also come to the Republic and put an application for Resident card , if the husband is working there. Towards the time the baby is due she can go to Northern Ireland, give birth and return. The Husband can then apply for the baby's British and Irish Passport and the time would be ticking for the resident card as well. Thats perfectly within their rights

I think the EEA FP is a waste of time as two people i know who are holder of Irish resident card were recently illegally refused on the grounds that they haven't got sufficient fund and accomodation in the UK, and the other one on the illegal grounds that she overstayed her visa under national rules the last time she was living in the UK , and they suspect she will not come back to Ireland. The ECO just does seem to know what they are doing.

ado.machung
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Post by ado.machung » Fri Jun 19, 2009 8:51 pm

Obie wrote: I think the best bet is to get a visa for Northern Ireland and give birth there.
I wasn't aware i could apply for just a Northern Ireland Visa. Who issues it ? The Brit Consulate or Irish ?
I always thought the only way to legally get into N. Ireland was with a UK visa.

Btw, i have no intention of ever residing in the UK.
My priority is to give my kid a chance of getting British Citizenship, or the next best thing (Irish).

Ben
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Post by Ben » Fri Jun 19, 2009 9:36 pm

ado.machung wrote:I wasn't aware i could apply for just a Northern Ireland Visa. Who issues it ? The Brit Consulate or Irish ?
There isn't such thing.

Ado, do you or not intend on pursuing an economic activity when in Ireland?
I am no longer posting publicly on this website - PM me if needed.

Obie
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Ireland

Post by Obie » Fri Jun 19, 2009 10:22 pm

Sorry for confusing you.

Northern Ireland is Part of the United Kingdom of Great Britain & Northern Ireland.

Therefore a UK visa will suffice for entry to Northern Ireland.

Ben
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Post by Ben » Fri Jun 19, 2009 10:25 pm

Obie wrote:Therefore a UK visa will suffice for entry to Northern Ireland.
..if a visa is required.

We haven't established yet if the couple will be entering Northern Ireland, from Ireland, in accordance with UK rules or EU rules.
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Obie
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Ireland

Post by Obie » Fri Jun 19, 2009 10:41 pm

benifa wrote:
..if a visa is required.

We haven't established yet if the couple will be entering Northern Ireland, from Ireland, in accordance with UK rules or EU rules.
I am with you now Ben.

ado.machung
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Post by ado.machung » Sat Jun 20, 2009 6:37 am

benifa wrote: Ado, do you or not intend on pursuing an economic activity when in Ireland?
In short, with the advice posted here, i was planning to leave for the Republic of Ireland with my wife, exercise my treaty rights (work temporarily), and then apply for a EEA Family permit and enter the UK (N.Ireland or Britain) for the delivery. Similar to the Singh case.
Obie's information on the 6 months minimum seems legit, but that inturn has made me re-think the entire situation.
I suppose i'll give the EEA Permit a shot once i'm in Ireland and working.
Worse case scenario - we'll do the delivery in Dublin (which isn't that bad, all things considered).

Ben
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Post by Ben » Sat Jun 20, 2009 1:00 pm

ado.machung wrote:In short, with the advice posted here, i was planning to leave for the Republic of Ireland with my wife, exercise my treaty rights (work temporarily), and then apply for a EEA Family permit and enter the UK (N.Ireland or Britain) for the delivery. Similar to the Singh case.
Obie's information on the 6 months minimum seems legit, but that inturn has made me re-think the entire situation.
I suppose i'll give the EEA Permit a shot once i'm in Ireland and working.
Worse case scenario - we'll do the delivery in Dublin (which isn't that bad, all things considered).
UKBA document on RIGHTS OF NON-EEA NATIONAL FAMILY MEMBERS OF EUROPEAN ECONOMIC AREA (EEA) NATIONALS wrote:2.5.1 Family Members of a British national (Surinder Singh)
The ECJ case of SURINDER SINGH ruled that where a national of a Member State goes with his/her non-EEA national spouse to another Member State to exercise an economic Treaty right, on return to his/her own Member State the non-EEA national spouse is entitled to join the EEA national under EC law.
Under regulation 9 of the 2006 Regulations, the family members of a British national returning to the UK will be treated as if they were the family members of an EEA national under the following conditions:
•
After leaving the United Kingdom, the British national resided in an EEA state and –
o
Was employed there (other than on a transient or casual basis); or
o
Established him/herself there as a self-employed person; and
•
If the family member is his/her spouse, the marriage took place, and the parties lived together in an EEA state, before the British national returned to the United Kingdom.
The family member of a British national will only have a right to reside in the UK under the 2006 Regulations if the British national would have a right to reside in the UK under those Regulations if he/she were an EEA national, e.g. because he/she is working or self-sufficient.
See also:
UK internal guidance on EEA Family Permits wrote:EUN2.14 Can family members of British citizens qualify for an EEA family permit? ('Surinder Singh' cases)

A British national and his/ her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (i.e. as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national's return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgement is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

* The British citizen is residing in an EEA Member State as a worker or self-employed person or was doing so before returning to the UK.
* If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or they entered into the marriage or civil partnership and were living together in that EEA country before returning to the UK.

Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

It does not matter if the only reason the British national went to another Member State was to exercise an economic Treaty right was so that he/ she could come back to the UK with his/ her family members under EC law.

The ECO should seek advice from ECO Support where unsure about the decision to be taken in applying the Surinder Singh judgement.

The latter of the two quotes above is for further reading of the UK's implementation of the ECJ ruling on Singh. Any references to the EEA Family Permit can be ignored.

The EEA Family Permit is totally pointless for your situation.

The EEA FP is a visa - a form of pre-entry clearance. There are no border checkpoints between ROI and NI. Even if there were, your two passports, your marriage cert and (since you're relying on Singh), evidence of your exercising an economic activity in Ireland (wage slips) are enough to confirm that you are persons with the right of entry and residence under EEA regs. See below:
Directive 2004/38/EC, Article 5(4) wrote:Right of entry
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.

Once present in the UK, your wife's status would be exactly the same - whether she were to have an EEA FP in her passport or not. See below:
Metock ECJ ruling wrote:the Court holds that a non-Community spouse of a Union citizen who accompanies or joins that citizen can benefit from the directive, irrespective of when and where their marriage took place and of how that spouse entered the host Member State.

After entry in to the UK:
Directive 2004/38/EC, Article 6 wrote:Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a
period of up to three months without any conditions or any formalities other than the requirement to
hold a valid identity card or passport.
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid
passport who are not nationals of a Member State, accompanying or joining the Union citizen.



Regarding giving birth in Northern Ireland:
Advice Guide - NHS charges for people from abroad wrote:You and your dependants are entitled to free NHS hospital treatment if your need for it arose during your visit to the UK. A medical opinion may be needed in order to decide if treatment should be provided free of charge. You have the right to free NHS hospital treatment if:-

* you are a national of an European Economic Area (EEA) country, living in an EEA state or Switzerland, or a refugee or stateless person living in an EEA state or Switzerland, or you are a non-EEA national who lives in an EU state and pays national insurance contributions there
Since the ECJ ruling on Singh provides that your entry and residence in the UK, for you and your family members, must be regarded as if you are an EEA national, and not a UK national - the above applies to you. You will be an EEA national, resident in Ireland, where you work and so pay national insurance contributions (or the equivalent of) there. You will be visiting the UK and, during the course of your visit, it will become necessary for your wife to get the free hospital treatment to which she is entitled.

Your child is born in Northern Ireland and so is both British citizen and an Irish citizen from birth, and able to transmit both citizenships to his / her own children - regardless of where in the world they will be born.
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