Engaged to non-national currently seeking asylum... Help plz

scrudu wrote:

IrishTom wrote:Are you saying that EU citizens have more rights in this regard, compared to Irish citizens?

Yes, as they are considered under the EU Directive, EU citizens (r Irish citizens who have exercsised treaty rights) are entitled to be joined by their spouses and family. Irish citizens do not have this right as they are considered under Irish law which does not afford Irish citizens the same rights. Applications can be refused/granted at the "discretion of the Minister for Justice".

Ripe for a court challenge, me thinks. Only a matter of time.

Yes, maybe someone with the financial wherewithal to take such a case on will do so eventually. There have been quite a few posters on this site already who had their visa app's refused for various reasons.

What's more frustrating, is that once a spouse of an Irish citizen is granted the Stamp4 they are also discriminated against when travelling within the EU with their Irish spouse. Non-EU spouses of other EU citizens who have been granted a Stamp4EUFAM under the European Directive can travel visa free when accompanying their EU spouse. non-EU spouses of Irish citizens must apply for a Schengen Visa each time as the Irish issued Stamp4 is not recognised as showing that the holder is a spouse of an EU citizen. Double standards that I don't understand.

rebel82 wrote:Doesn't matter where is he from he will get a resident card valid for 5 years and after 3 years he can apply for Naturalization and he will become an Irish citizen just like you Irishtom

not correct! eu law won't apply at this time, unless irish citizen had business /work matters in another eu state, whilst still ordinarily residing in the republic - ala carpetener v uk

under irish domestic law, the minister has discretion. he will no doubt try and apply previous ecthr and english domestic caselaw/guideline in this area. eg r (mahmood) v sec for home department. In that case they looked at whether the parties to the marriage knew of the non eu national's immigration status before the marriage - assumption then that there was a risk of be separated if not allowed to stay.the case provided that the convention does not force a member state to gurantee a family's right to choose and decide where they want to live. please note all cases would be considered on their own facts!

ironically, if ye headed up north for a while, ye "might" (small might - akrich might not have gone away) be able to avail of the eu directive when you returned.

although the gentleman in question is not illegal, he might have problems as he is an asylum seeker.

so, if he is refused refugee status, which by the way is a very narrow definition and even some people in places like sudan or somalia may not succeed ie persecution on a conventional ground, they will be entitled to apply, after minister officially refuses refugee status, for subsidiary protection and leave to remain on humanitarian grounds. here the marriage would be considered. alternatively or additional, an application to married to irish spouse unit could be done. may suggest to stay arms length from gnib. all correspondences to minister for justice only

matters to hammer home
1. length of relationship and marriage
2. children in family and children from previous relationship, their age and whether the father of children from previous is in contact with same
3. any fianancial commitments, work family responsibilities of irish citizen and any joint financial responsibilities (eg mortgage, carer of other family members
4. country of origin of non eu spouse - is it safe, what's their attitude towards women, children, health, different religions/colour/race
5. any potential difficulties in Irish citizen being allowed to live in hsband's country

bascially, evidence of serious obstacles as to why they family could not live in the country of husband will be required. the above is an example.

it may be alot easier, but it must be pt to the minister as to why the family could not be execpted to go elsewhere. solid evidence of a relationship might help.

for those bitching and moaning about their eu rights etc, this is a prefect of example of the right of an Irish citizen whose family members are neither Irish or eu. they have no statuory rights! if the non eu citizen is from a class of immigrants (eg asylum seekers , refused asylum seekers or illegal) then they are left to the mercy of the minister (of course they have hte same access to the court)

best of luck

IrishTom wrote:

scrudu wrote:Jennybean: As previously described, your husband would have to apply for a Stamp4 under Irish law. He will have to apply to INIS not the GNIB. The GNIB really only officiate decisions made by INIS, so the Stamp will have to be granted by INIS first. Agniukas has explained this pretty well.

You'll need a LOT of luck on your side and a lot of proof to show that this is a "real" marriage as the INIS and the Minister of Justice states that there is no requirement for them to grant a visa to a spouse of an Irish citizen. Unlike spouses of EU citizens (or Irish citizens who have exercsised treaty rights) there is a chance that any application can be refused. Ignore any comments by posters that mention EU Treaty rights as this does not apply to your situation. It can take 12-18 months for the application to be processed and during that time he will not be granted any other stamp or right to work. He will remain an Asylum seeker until a decision is reached.

Are you saying that EU citizens have more rights in this regard, compared to Irish citizens?

YES!

IrishTom wrote:

scrudu wrote:

IrishTom wrote:Are you saying that EU citizens have more rights in this regard, compared to Irish citizens?

Yes, as they are considered under the EU Directive, EU citizens (r Irish citizens who have exercsised treaty rights) are entitled to be joined by their spouses and family. Irish citizens do not have this right as they are considered under Irish law which does not afford Irish citizens the same rights. Applications can be refused/granted at the "discretion of the Minister for Justice".

Ripe for a court challenge, me thinks. Only a matter of time.

there have been a number in the past decade. moylan is a recent one (though in realation to a mother in law and not spouse)

legislation is whats needed, even just to confirm what the law is.courts are reluctant to interfere with minister's discretion.each case on their own facts. fitzpatrick is one case circa 2001-2003

scrudu wrote:Yes, maybe someone with the financial wherewithal to take such a case on will do so eventually. There have been quite a few posters on this site already who had their visa app's refused for various reasons.

What's more frustrating, is that once a spouse of an Irish citizen is granted the Stamp4 they are also discriminated against when travelling within the EU with their Irish spouse. Non-EU spouses of other EU citizens who have been granted a Stamp4EUFAM under the European Directive can travel visa free when accompanying their EU spouse. non-EU spouses of Irish citizens must apply for a Schengen Visa each time as the Irish issued Stamp4 is not recognised as showing that the holder is a spouse of an EU citizen. Double standards that I don't understand.

i don't think its discrimination.yes its annoying but ireland could always join the schegen group, they themselves opt out, as you know. for those eu people who live in ireland with their non eu spouse, its likely that, unless from britain or denmark, their country is part of schegen

however, you are further aware from the directive that each member state must clearly assist and faciliate the entry into their frontier another eu citizien and their spouse. its inconvenience but they won't be refused, so long as the irish spouse knows theirs rights and insists upon them being implemented when in another eu state.

their passport and marriage cert, along with proof of the non eu spouse's permission to be in ireland, which would be clear on what basis that they live in ireland would be ample evidence

walrusgumble wrote:legislation is whats needed, even just to confirm what the law is.courts are reluctant to interfere with minister's discretion.each case on their own facts.

Completely agree.

The absence of legislation in this country, in relation to immigration matters, is frankly astonishing.

"Ah sure, apply to the minister, plead yer case. Be grand sure". Sorry - doesn't wash. We need legislation. Written down in black and white. No more grey area or case-by-case basis codswallop. Give us laws, so that the people and the government know precisely where we all stand.

benifa wrote:

walrusgumble wrote:legislation is whats needed, even just to confirm what the law is.courts are reluctant to interfere with minister's discretion.each case on their own facts.

Completely agree.

The absence of legislation in this country, in relation to immigration matters, is frankly astonishing.

"Ah sure, apply to the minister, plead yer case. Be grand sure". Sorry - doesn't wash. We need legislation. Written down in black and white. No more grey area or case-by-case basis codswallop. Give us laws, so that the people and the government know precisely where we all stand.

I TOTALLY AGREE!!! At least if there was a bit of legislation or laws regarding Irish citizens and Non-EU spouses, then we would know what to do, legally. It so annoying to have to base everything on hope, i'm not a big "hoper" or "wishful thinker" I like to base my decisions on hard facts. This is why this annoys me so much.

So to clarify WALRUSGRUMBLE, if asylum application is refused, and we are married at this stage, he can apply for subsidiary protection or permission to remain once we have some compelling reasons to show the minister???? Well we dont have any children yet, we are both still young. We have been in a relationship for 1 and a half years and engaged for this last 6 months. I dont have any financial commitment but I would definitely not want to leave Ireland, leave all my family and friends behind, but I am not caring for any family member so I dont think that would be an option would it. Its so confusing!

What would relationship evidence be? We only moved in together last week so the bills are still in my name. I think the only evidence we would have is photos and gifts to each other, text messages dated back to when we first met. We are going to open a joint bank account soon too so that we can pay the bills out of that. Any other advice on how to prove the relationship?

Thanks everyone soooo much for your knowledgable advice

jennybean wrote:

benifa wrote:

walrusgumble wrote:legislation is whats needed, even just to confirm what the law is.courts are reluctant to interfere with minister's discretion.each case on their own facts.

Completely agree.

The absence of legislation in this country, in relation to immigration matters, is frankly astonishing.

"Ah sure, apply to the minister, plead yer case. Be grand sure". Sorry - doesn't wash. We need legislation. Written down in black and white. No more grey area or case-by-case basis codswallop. Give us laws, so that the people and the government know precisely where we all stand.

I TOTALLY AGREE!!! At least if there was a bit of legislation or laws regarding Irish citizens and Non-EU spouses, then we would know what to do, legally. It so annoying to have to base everything on hope, i'm not a big "hoper" or "wishful thinker" I like to base my decisions on hard facts. This is why this annoys me so much.

So to clarify WALRUSGRUMBLE, if asylum application is refused, and we are married at this stage, he can apply for subsidiary protection or permission to remain once we have some compelling reasons to show the minister???? Well we dont have any children yet, we are both still young. We have been in a relationship for 1 and a half years and engaged for this last 6 months. I dont have any financial commitment but I would definitely not want to leave Ireland, leave all my family and friends behind, but I am not caring for any family member so I dont think that would be an option would it. Its so confusing!

What would relationship evidence be? We only moved in together last week so the bills are still in my name. I think the only evidence we would have is photos and gifts to each other, text messages dated back to when we first met. We are going to open a joint bank account soon too so that we can pay the bills out of that. Any other advice on how to prove the relationship?

Thanks everyone soooo much for your knowledgable advice

if he is refused asylum and there is no way to successfully challenge "how the decision" was made, the minister will under section 3 of the immigration act 1999, as amended inform the person that he is to be refused refugee status. at this point he is no longer an asylum seeker.he has no right to reside, but, at the same time, his "illegality" is tolerated whilst the minister considers any application which may subsequently be made.

In the letter, known as a section 3 letter, your husband will have 3 choices
1. leave voluntarily
2. allow a deportation order occur and be removed
3. apply for subsidiary protection and leave to remain

note, he came on the basis that he feared a return to his country, so leaving would undermine any reason for any potential obstacles for being a family in his country

with regard to subsidiary protection, it is provided where one can show that they would suffer serious harm if returned to their country. this form of protection will be based on the asylum claim and is there where the person case was credible but did not meet the criteria for asylum, however, could not be sent home. it is based on legislation so minister has to be careful when considering the case

leave to remain is the second application which is considered if someone is refused subsidiary protection. it should be done together. here the minister enjoys discretion so long as he fairly considers the person's human rights (eg artilce 3 & 8 of ECHR) and fully explains any reason for refusal. here the matter of marriage would be considered.

He can make those applications regardless of been married or not. One has 15 days to complete application.However, note! if refused subsidiary protection or leave to remain, the minister will then issue a deportation order.make sure a lawyer deals with this. do not do it on your own

in addition, an application to Married to Irish Spouse Unit should be done


With regard to evidence, it would be handy to show a lengthy durable relationship of say 2 years, a lengthy marriage of say 1 year, children (please don't get any ideas - still no guarantee),

However, evidence of residence include utlitity bills with both names, letters from family and friends, joint bank statements.are you working? show evidence that you could support spouse, any serious illness

where is he from?

Thanks for all the advice.

No i'm not working at the moment, I am in my last year of college and I finish at the end of April. Going to try my hardest to get a job then, even if its just temping til I get experience.

Children would be out of the question this year, want to be financially stable before we think about children.

No serious illnesses either.

Oh and he's from Nigeria.

Thanks again

jennybean wrote:Thanks for all the advice.

No i'm not working at the moment, I am in my last year of college and I finish at the end of April. Going to try my hardest to get a job then, even if its just temping til I get experience.

Children would be out of the question this year, want to be financially stable before we think about children.

No serious illnesses either.

Oh and he's from Nigeria.

Thanks again

Right well best of luck. It would be helpful if you were in full time employment and full medically insured etc (to have a cracking chance of success)

Nigeria, well the Minister is not sympathetic to that country, country of origin information from sources such as UN Human Rights, UK Home Office, US State Dept etc show that it is possible to live in parts of Nigeria such as Lagos and be free from any form of abuse from government, though the cops all round are useless in sorting out crime (according to COI) maybe difficult. One of the first questions the minister "might" look at after seeing how long the relationship is and the status of your partner at the time, whether or not it is possible to live as man and wife in another country - despite your citizenship. At the same time, he may not. I am sure he will be influenced by english cases like R (Mahmood)

Hiya

By the time we are married I hope to be in full time employment, and will get VHI then too, to have a better chance.

If the minister was to refuse subsidiary protection, leave to remain and the application to the spouse unit, is there still an option for voluntary return, because I would like if we could live the majority of our lives in Ireland, and if he was to be deported, isnt he banned from Ireland forever?

I have also thought of the option of moving to UK or NI for around 6 months, provided I get a job, and then return to Ireland, having exercised my treaty rights and then we could apply for, I think its called, stamp EU4fam.

Thanks again

jennybean wrote:I have also thought of the option of moving to UK or NI for around 6 months, provided I get a job, and then return to Ireland, having exercised my treaty rights and then we could apply for, I think its called, stamp EU4fam.

Correct, you can indeed move to Northern Ireland for six months, work there, then return to Ireland.

When resident in the UK, there is no compulsion for either the EEA national or the non-EEA national to register their presence in the state. This may save yourselves some headache with the UKBA, especially since your period of residence in the UK will not be long-term.

benifa wrote:Correct, you can indeed move to Northern Ireland for six months, work there, then return to Ireland.

When resident in the UK, there is no compulsion for either the EEA national or the non-EEA national to register their presence in the state. This may save yourselves some headache with the UKBA, especially since your period of residence in the UK will not be long-term.

Oh so you dont have to register with the British police? My fiancé would still need a visa though wouldn't he, and would I need any sort of visa if I am staying longer than 3 months?

jennybean wrote:Oh so you dont have to register with the British police?

Nope.

jennybean wrote:My fiancé would still need a visa though wouldn't he

Nope.

jennybean wrote:and would I need any sort of visa if I am staying longer than 3 months?

Nope.

Oh I didnt know that at all.

Gosh, that seems like a much easier route to take then, I must look into it in more detail.

Thanks Benifa

jennybean wrote:Gosh, that seems like a much easier route to take then, I must look into it in more detail.

Indeed. Incidentally, you will either be married or in a "durable relationship, duly attested" by the time you're in NI, right?

I just clarify as well that whilst it is not mandatory for your partner/husband to apply for a Residence Card in the UK, you should bear in mind that some form of evidence will have to be shown to the Department of Justice, when you return to Ireland, to prove that you and he were resident in the UK for said period.

What I'm saying in a nut shell is, put some of the bills in his name.

benifa wrote:

jennybean wrote:My fiancé would still need a visa though wouldn't

he

benifa wrote:Nope.

I thought this dude was an asylum seeker?

IrishTom wrote:I thought this dude was an asylum seeker?

Makes no odds.

IrishTom wrote:

benifa wrote:

jennybean wrote:My fiancé would still need a visa though wouldn't

he

benifa wrote:Nope.

I thought this dude was an asylum seeker?

I meant if is application was refused, and we applied for permission to remain or other routes, he is currently still an asylum seeker.

In the UK, he is the family member of an EEA national.

jennybean wrote:Hiya

By the time we are married I hope to be in full time employment, and will get VHI then too, to have a better chance.

If the minister was to refuse subsidiary protection, leave to remain and the application to the spouse unit, is there still an option for voluntary return, because I would like if we could live the majority of our lives in Ireland, and if he was to be deported, isnt he banned from Ireland forever?

I have also thought of the option of moving to UK or NI for around 6 months, provided I get a job, and then return to Ireland, having exercised my treaty rights and then we could apply for, I think its called, stamp EU4fam.

Thanks again

The risk of being refused subsidiary protection and/or leave to remain means that the minister can issue a deportation order. You get three choices, one to leave now, one to allow a deportation order and one to make application. Once you choose to make the application you waive any chance of being voluntarily returned. If he returned volutarily, and please don't be offended here, he sort of undermines his whole reason for coming here in the first place ie seek protection in Nigeria as his life was in danger.

Banned forever, no, about 10 years or so. THis may have implications in trying to enter other EU States, now that in practice is another matter. You could always apply under Section 3 (11) of the Immigration Act 1999 to seek revocation of the valid deportation order

I am going to be careful here as to advise him entering another EU State in the position he is in here, as it won't be seen as favourable, despite Metock, a la Akrich (this is still up in the air). But techincally yes, buy residing in another EU State (hate saying this about NI) and residing & working / or even simply working (a la Carpenter v UK) in Norn Iron for about 6 months to 1 year would help you enjoy EU Treaty rights when returning

Hi Jenny Bean,

I was in the same situation as yourself, I am a British citizen living in Ireland and i met my now husband while his asylum claim was pending, we married and then dropped his asylum claim, we then had a stamp 4 within 6 months. If you get married you can apply to your local GNIB office straight away and your husband will rec a stamp 4, if you wish then you can drop his asylum claim, as he will no longer need to claim asylum as you are a Irish citizen and he is your husband

Oh and Irish Tom, why are you trolling on here, this forum is for people who are living with immigration issues and need advice!! Have you nothing better to be doing? LOSER

kelster wrote:Hi Jenny Bean,

I was in the same situation as yourself, I am a British citizen living in Ireland and i met my now husband while his asylum claim was pending, we married and then dropped his asylum claim, we then had a stamp 4 within 6 months. If you get married you can apply to your local GNIB office straight away and your husband will rec a stamp 4, if you wish then you can drop his asylum claim, as he will no longer need to claim asylum as you are a Irish citizen and he is your husband

Can I just point one thing out, and completely in interest of assisting the OP. Kelster's (you) and the OP's position are completely different.

Respectively, legal entitlement wise, these are two different cases.

Kelster is British and OP is Irish. Kelster was able to apply for the spouse to get stamp 4 on the basis of EU Treaty Rights (or Gardaí assumed). Yes without much questions Kelster could go to garda and get his/her spouse status.

But, in OP's case, this can't be as, although she too is an EU citizen, the EU Treaty Rights of family Renunification won't kick in until she leaves the 26 counties.

If Kelester's spouse had been refused residency, it would have been a breach of Directive 2004/38 EC and The Treaty. However, none of these provisions would be breached in OP's case as they would not apply yet as only domestic Imigration law and policy applies!

Maybe worth a shot, trying the GNIB once married, but don't expect much, they will tell you to make application to INIS as (a) he is an asylum seeker (b) he is a person from a visa required country - Non Visa required countries seem to be able to register by simply going to cops.