Form EU 1 - Can anyone advise?

Hi,

I have seen lots of great posts so i'm hoping someone will be able to give me advice specific to my situation.

I am a British passport holder and my husband is South African. We met in the UK 3 years ago and moved to South africa last year to travel etc.

We moved to Ireland a month ago to settle down and we are now in the process of applying for a residence card for my husband.

My worries/issues:

- He overstayed his visa in the UK by a year. BUT We left once we were in a position to do so and of our own accord.

- We married in South Africa and this was our place of residence for 9 months prior to moving to Ireland.

- We have been asked to provide evidence of legal residence in another member state within the next 10 days... we dont have any! We destroyed alot of paperwork (bills etc.) when we left the UK - we thought we would be in South Africa for a long time and didnt realise we would need it.

In addition to not having any, the last year we lived together he wasnt legally resident so it wouldnt amount to "legal residence" anyway!

I am very worried this will mean our application failing. I have no idea what my rights are at this moment.

I am working, we have private health care ( i was told by my local garda to get this) , accomodation etc.

Thanks in advance for any help,

Meg

You say that he over stayed his visa by a year, do you mean he over stayed the (usually) 6 month entry clearance as a visitor or was he in a visa category such as Working Holiday Visa, Work Permit, fiance etc because surely this is evidence of residence?

It seems like the idiots in the treaty rights section is still insisting on residence in another EU member state prior to moving to Ireland. As far as I am concerned this is an incorrect interpretation because whether your spouse lived in the EU or not, you would still be exercising treaty rights. How did they give permission prior to the new directive? They're just playing hard ball, no wonder people are taking them to court.

Sorry if my reply isnt particularly helpful but there are people on here much better equiped to answer your question. Thing is no one truly knows exactly what the rules are because the Irish government choses not to make their immigration policies known to the public, and only the bare minimum information is given.

megmog wrote:He overstayed his visa in the UK by a year.

This is not such a big deal if you are married and you are exercising your treaty rights.

megmog wrote:We have been asked to provide evidence of legal residence in another member state within the next 10 days... we dont have any!

You don't have any??? Did you work and get payslips (duplicates from your old employers)? Did you pay income tax or council tax while in the UK (duplicate statements from Inland Revenue)? TV license? Did you have a car with insurance? Or a credit card? Were you registered to vote? Did you have a telephone or cellphone contract? Often you can get duplicate bank account statements going back several years. You can try to contact all of these people to get a copy of your records. Most will say they can't do it, but a few will send you the records.

megmog wrote:I am very worried this will mean our application failing. I have no idea what my rights are at this moment.

I think you will have to learn to love the uncertainty for now. It will take a while to sort it out. (When you get your passports back it may make sense to apply for a UK family permit).

I would urge you to immediately contact the EU's Solvit (http://europa.eu.int/solvit/) for their assistance. Do it tonight (you follow up with the documentation later).

You should also consider contacting the NGOs listed at http://eumovement.wordpress.com/info-ireland/

Finally, it is worth reading and understanding Directive 2004/38/EC, which is the basis of your rights in Ireland. http://eumovement.wordpress.com/directive-200438ec/
The Irish may have done a good or bad job of transposing it to the local law (SI), but your fundamental rights come from the Directive itself.

megmog wrote:we have private health care ( i was told by my local garda to get this)

What exactly did the garda tell you? This is most odd.

Hi.. I'm in a similar boat. I am from South Africa and my husband is English. We also don't have any paperwork at all showing that we lived together before coming to Ireland. When I rang the Department of Justice from England before coming to Ireland they said that we would be excercising treaty rights and we can't be refused. The health insurance bit.. we also got told that and spent an absolute fortune on it for no reason as it is apparently not necessary when applying through EU1. What a lot of people in Europe don't realise is that in South Africa it is not an absolute necessity to have things like council tax etc. Millions of people live there without being on file anywhere. I did for many years. I think you should go to Solvit. It seems to me that people are getting results after going there and if my application isn't processed by the due date I will also take that route. Best of luck with this.. I know how frustrating it is.

How long ago did you send your EU1 form in?

Thank you for all your responses, they were most helpful!

In answer to you questions -

My husband overstayed his working holiday visa - but he has a new passport so this is not contained within.

I can get some of the evidence listed (payslips etc.) but they have given me "10 days from the date of the letter to submit the requested information or they will process our application without it".

Our belongings (which contain most of this evidence) wont arrive until saturday - after 10 days!

I send the EU1 Form on 12th March this year and they responded on the 14th.

The Garda told me that medical cover will "help" in our application and we should really get it.

Any more queries, just ask!

Thanks again,

Meg

Hi all,

I have a question regarding evidence of legal residence in another state (mentioned eariler in this forum). My husband just submitted the EU1 form and we have been requested to provide this evidence. My husband and I are both Australian but I also have a Spanish passport (EU member). My parents (both Spanish) immigrated to Australia years ago and we've since lived there, even though a majority of my family live in Spain. I obtained my Spanish passport in Australia and I therefore have no evidence that i've lived in Spain can't provide it. Is this necessary requirement? It's all very confusing and I naturally can't get through to DOJ on the phone so i'm not sure what to do about it.

Any advice would be terrific!

Technically it shouldn't be a problem. Before we got to Ireland I rang the DOJ and asked if we need to apply first before coming if we were not legally residing in a member state and got told no, we don't. I heard from somewhere (sorry no reference) that it is just that problem that they are having some court case over. If you read some of the other postings in this forum... some of the other people on here (think it could be Zen63) also applied without having lived in a member state and it got approved. Did you submit any evidence of you and your husband residing together before arriving here?

we haven't submitted evidence of us living together because we just dont have it. In south africa, the only bill you will get is electricity and that was in my husbands name. I have written asking what they would like us to submit so i will post when i hear more!

thankyou for your comments

I can't see a problem either but i'm not sure what to send back to them. No we didn't provide evidence of living together prior to Ireland. Purely because the application didnt' ask for it. We could easily provide that evidence but it will have an Australian address. The document says "legal residence in another member state". Australia isn't an EU state.

I know.. in SA (after living there for 29 years) I still don't have even an electricity bill in my name. It's paperless living there but some Europeans find it hard to believe. It is shocking that things get demanded when they weren't even asked for. Even the health insurance thing.. lucky we also got it but who knows how much it actually helps.

Megmog.. where in SA does your hubby come from?

he comes from pretoria... i spoke to solvit and had some interesting info. apparently a court case finished in december that ruled ireland CAN require residence in another member state in order to exercise treaty rights when mvoing to another state. but they said i can still apply under national immigration rules, rather than eu rules, so who knows what is going to happen. apparently i will hear on monday. i will let you know!

the court case was called JIA by the way..
http://eur-lex.europa.eu/LexUriServ/sit ... 030004.pdf

Doesn't this case refer to granting a residence permit to Family members of a Non-EU Person, based on that persons marriage to a EU citizen?

For example if I would apply for a residence permit for my wifes (non-EU) parents, based on my wifes marriage to an EU citizen?

I also thought so. I am so thoroughly confused now.

[b]Megmog,[/b] I've just contact immigration regarding the legal evidence of residence of a member state (i think you're in the situation as I am). Apparently all you have to do is write a letter explaining your situation of why you don't have evidence (ie. you resided in a country that isn't a member of state). The lady said that would be sufficient. It's not a big deal as long as you gave evidence of being a EU member (your passport). So write a letter and send it ASAP. That's what's i'm doing so I hope it work.

All the best.

This sounds like good news..

it certainly does.. i'm in discussions with solvit, will keep you posted

Thanks megmog I am also from Pretoria.. Centurion in Pretoria.

Oh cool, we lived in silverlakes, east pretoria. I know centurion well! Especially the home affairs office..

Ok... just heard...

"I am afraid that the Irish Department of Justice is taking a very strong line with regard to the EU Treaty Rights of non-EU nationals married to an EU citizen but that is not to say that you do not have a case.

At present, the Department of Justice are awaiting a judgement in a court case relating to the Irish legislation that governs this area and until then the Department of Justice will not process any applications under EU Treaty Rights, unless the non-EU applicant can prove that he/she was resident in another EU Member State."

So basically, i am going to do what i can and see how far we get!

God this is like a rollercoaster...! I dont know whether i am up or down

So the big questions are:

- Where is this court case?
- When is a judgement due?
- How will the justice Department accommodate the people who are waiting
for the last 6 - 9 Months (re-entry permits, work permits etc.)?

It can't be that people are held prisoner in the country without any rights, just because the Irish Justice Department is too stupid to properly implement EU regulations.

I heard from the immigrant council that judgement is due at the end of april..

megmog wrote:Ok... just heard...

"I am afraid that the Irish Department of Justice is taking a very strong line with regard to the EU Treaty Rights of non-EU nationals married to an EU citizen but that is not to say that you do not have a case.

At present, the Department of Justice are awaiting a judgement in a court case relating to the Irish legislation that governs this area and until then the Department of Justice will not process any applications under EU Treaty Rights, unless the non-EU applicant can prove that he/she was resident in another EU Member State."

So basically, i am going to do what i can and see how far we get!

God this is like a rollercoaster...! I dont know whether i am up or down

The EC regulations, Directive 2004/38/EC is quite explicit.
''A qualifying family member, who is a member of a class of non-nationals not specified in
an order made under section 17 of the Immigration Act 2004 (No. 1 of 2004) as not
requiring an Irish visa, shall be in possession of a valid Irish visa as a condition to being
granted permission to enter the State.The Minister shall, on the basis of an accelerated process, consider an application for an
Irish visa from a qualifying family member referred to in subparagraph (a) as soon as
possible and, if the Minister decides to issue an Irish visa, the relevant Irish visa shall be
issued free of charge.''
''A family member of a Union citizen who is not a national of a Member State and who has
been resident in the State for not less than 3 months shall apply to the Minister for a
residence card.''
I have read the regulations and there is no reference,that,the non-EU applicant should prove that he/she was resident in another EU Member State.Well,we don't know the actual content of the test case.Fingers crossed.

I sent an enquiry to signpost, who offer free legal advice, and they responded -

As the spouse of an EU citizen, your South African husband/wife is entitled to reside with you in Ireland. This is clearly provided under Directive 2004/38 which became effective throughout the EU on 30th April last. It is irrelevant where you lived prior to taking up residence in Ireland. On arrival in Ireland, your spouse is required to apply for a residence card within three months. The residence card should issue within six months. Your spouse is entitled to take up work prior to issue of the residence card.

You may wish to confirm your situation with the Department of Justice in Ireland at www.justice.ie or by telephone at 00 353 1 616 7700.

In the event that your spouse encounters a problem in obtaining a residence card in Ireland, it is open to you to refer the matter to SOLVIT which is an EU network established to resolve problems caused by misapplication of EU law by public administrations. The website address upon which you will find further details of the SOLVIT service together with contact details for the Irish and UK SOLVIT representatives is www.ec.europa.eu/solvit/



I hope they are right!