Irish Citizen Non EU Visa Required National Husband refused

[ciaramc]

Hey all have been on and off this site for the past couple of years!!!!
I need some help my husband Moroccan national...applied for permit of stay in Italy after we married 2 years ago....we got refused last week on the basis that he was illegal at the time of marriage and was asked to leave Italy....we are appealling but things are not looking googd even though we or should I say I yhave been living and working in Italy 7 years...We had always planned to go to Ireland after we got his permit using the EU1 form as I had been a resident in another EU country for longer than 5 years.....Now we are planning in the summer for me to return to Ireland and him to Morocco and apply to enter Ireland from there....ù

Im so upset as we have been waiting 2 years for Italy to give us a responce and have put our lives on hold...if I thought they were gong to refuse I would have returned to Ireland years ago!!!!!!!

If any one has any reliable information on what I have to do to get my husband into Ireland even though he was turned away from Italy it would be much appreciated!

I have lots of proof of our marriage photos from 2002to present, certificates, photos with my family and my entry stamps into Morocco when I visited his family! Also letters from all my family and friends who know my husband.....we have contract from our apartments the whole time we lived here!

I feel we are going to have a big problem getting into because he was refused residence here, in Italy! And also I will no longer be able to apply for EU1. He did enter Italy illegally! but we have been trying for years to change his status!

Help anyone!

[ciaramc]

Hey anybody....some info much appreciated!

[ca.funke]

OK - I'll try to recap the important bits from your first post. Correct me if I'm wrong:

1. You are Irish.
2. Your husband is Moroccan.
3. You lived together in Italy in the past.
4. Now you are in Italy, your husband is in Morocco?
5. You want to move to Ireland together.

The short summary is: You should come to Ireland now, and your husband should apply to join you here in the Irish embassy or consulate in Morocco. (Join Spouse Visa)

Longer explanation:

I do not understand why the "previous residency" should do any good to you here in Ireland:

If you want to get a residency-permit for your husband here in Ireland, but you are Irish, then this will not be treated according to EU-laws (2004/38/EC), but it will be treated according to Irish laws.

2004/38/EC is incorrectly/illegally transposed into Irish law, that's where all the fuss about the "previous residency" is from. However, as you are Irish, this will not apply for you in Ireland anyway.

It would be much easier for you to move to any country in the EU, except your own, as 2004/38/EC applies.

I guess you would want to apply for an EU-citizenship for your partner ASAP, so all these problems are finally solved. For this matter, Italy is actually great, as they usually give you citizenship after living there for only 3 years. In Ireland the summary for this is: Forget it. It takes 5 years until you can apply, then it takes another 3 years until the application is processed.

If you want to avoid running into lots of trouble, stay out of Ireland and keep enjoying the sun in Italy

Good luck...

[yankeegirl]

I do not understand why the "previous residency" should do any good to you here in Ireland:

If you want to get a residency-permit for your husband here in Ireland, but you are Irish, then this will not be treated according to EU-laws (2004/38/EC), but it will be treated according to Irish laws.

This is true, but what I think ciaramc and her spouse were going to do was apply for EU1 based on the Surinder Singh ruling, since she, as an Irish citizen, has been exercising her treaty rights in Italy and living there with her spouse.

For this matter, Italy is actually great, as they usually give you citizenship after living there for only 3 years. In Ireland the summary for this is: Forget it. It takes 5 years until you can apply, then it takes another 3 years until the application is processed.

Her spouse will qualify for Irish citizenship after 3 years residence in Ireland as the spouse of an Irish citizen, but you're right, the processing time sucks!

Ciaramc, I'm sorry his residence permit was denied:( I remember your posts and was wondering how you were getting on.

Perhaps you could call the Immigrant Coucil of Ireland or a immigration adviser in Ireland before either of you leave Italy. The process would be for him to apply fro a 'D' spouse visa in Morocco, and then a Stamp 4 once he arrives in Ireland, but I'm not sure if or how his refusal of residence in Italy will affect the application.

Best of luck to you both!

[ciaramc]

Ok just to recap

Funke, I met my hubby 2001 in Italy where he had been living illegally since 1999....long story!

We got married even though he was illegal in 2006 applied for resident permit in Italy waited 2 years and just recieved the negative responce! We are trying to appeal but as it costs quite alot of money and time our court case will not be heard until after summer and then strong chance that it will be refused again......as he was illegal! and they are kinda in the right !

So we have decided instead of him sitting here unable to work and paying lots of rent! We should leave I to Ireland and him to Morocco...Im goign to go for a months holiday in the summer with him and apply for a D spouse visa but I still wanted to use the EU1 as its easier than Irish law and I had residency in another European country! But if he is unable to get permit for Italy not sure if I can still use that route???? Anyone know! My case is a bit complicated....we it is a very real and loving marriage and cant bear the thought of us being separated for a long period!

Another thing is that I can earn more money in Ireland and already have a house so would not need to be paying lots of expences! Yes I know Ireland is expensive!

Thanks yankeegirl...I have had a really hard 2 years just wanna go home with my hubby!"

Anyone any ideas will his refusal and illegal residence in Itally effect his chances of getting into Ireland?????????

Please anyone!

[ciaramc]

I guess you would want to apply for an EU-citizenship for your partner ASAP, so all these problems are finally solved. For this matter, Italy is actually great, as they usually give you citizenship after living there for only 3 years. In Ireland the summary for this is: Forget it. It takes 5 years until you can apply, then it takes another 3 years until the application is processed.

If you want to avoid running into lots of trouble, stay out of Ireland and keep enjoying the sun in Italy


Believe me I'm really going to miss our life in Italy we have made a fantastic one here ....but Italy is terrible about immigration (even though I know you all say Ireland is the worst)and they just had an election in which the big B one ....he is not an immigration sympathizer....and the law will soon change again here!!!! I'm sure for the worst!

And they won't give him an Italian passport even if I got Italian citizenship he is an overstayer here....which he is !!!! They have got a right to refuse him!

[archigabe]

But if he is unable to get permit for Italy not sure if I can still use that route???? Anyone know! My case is a bit complicated....we it is a very real and loving marriage and cant bear the thought of us being separated for a long period!

His status in Italy should not matter since he is applying from Morocco. You can use the 'Surinder singh' ruling,but not sure of the Irish government's response since we have not heard of anyone in Ireland using the route successfully.
Best Wishes!

[yankeegirl]

His status in Italy should not matter since he is applying from Morocco. You can use the 'Surinder singh' ruling,but not sure of the Irish government's response since we have not heard of anyone in Ireland using the route successfully.
Best Wishes!

I'm not sure about this Archigabe IIRC, there was a previous poster, I think it was Birdy, who was a UK citizen married to an American who ws going to use the Singh route to move from Ireland to the UK. The UK embassy wouldn't accept the application since the wife had no proof of residence in Ireland, so she returned to the States to make the application. They wouldn't accept the EU application from abroad so they had to apply under the UK application rules. I'll see if I can find that old thread.

[Directive/2004/38/EC]

ciaramc,

Did you apply for an EU Residence Card for your husand or for some other kind of residence permit?
What was the exact reason they gave for not issuing it?
Have you visited Ireland with your husband, and how did that visa application go? Was there a fee associated with that application?

[ciaramc]

No my husband has never been to Ireland as he has always been illegal since the time we met...the reason he was refused here is because he was illegal at the time we married.....he was illegaly on Italian territory and was asked to leave...which they never enforced and should have had an entrance visa.....the usual... which they are absolutely right about but then the should not have let us marry!!!! And left us waiting 2 years for a responce! This is typically italian ..........people live their whole lives here without ever becoming legal!

I have lots of proof that we are living together .....and its a proper marriage the only problem is he was living here illegally since 1999 so he can not open a bank account etc....even in Ireland I could not put him on a joint account with me! So all our proof is letters from my family and his, photos dating back to 2001, photos of both with his family and mine ....also I visited his family last year for 2 weeks so passport stamps from that also many photos and a dvd i made when I was there! But as soon as they see we were married in Italy they are going to ask for his entrance visa there! which if course he does not have! So we are going to have to go through why was he in Italy in the first place! Ido not want to lie about anything to the visa office!

Getting very worried!

[Directive/2004/38/EC]

ciaramc,

Did you apply for an EU Residence Card for your husand or for some other kind of residence permit?

What was the exact reason they gave for not issuing it? What were the words they wrote down?

[ciaramc]

Ok so I applied for an Italian permesso di soggiorno= permit of stay as the spouse of an EU citizen living and working in Italy.

The exact reason was as I said before he was illegally in Italy prior to the wedding! the had written that he was illegally in Italy since 1999 and was asked to leave the country in 2005, he was stopped with documents they gave him a sheet of paper asking him to leave but we were planning our wedding and we married 6 months later!

[harrisonfi]

I wish to get clear answers, because i couldn't find them from official sites.

Background

I'm a finnish guy, married with an argentinian woman. She has a residence card in Finland at the moment. I'm employed she is not. She wish to relocate to Ireland, because she thinks she could find a job there for her profession much better than in Finland.

We were planning that if she could go to Ireland and could find job there i will join her later, because we both can't be unemployed.


Open questions


1. Can she go to Ireland alone and apply a residency-permit in Ireland?
if not and if only way is that she should join me,
2. What are possible requirements for me (permanet address, work perhaps), until she or me can make an application?
and if section 2 is only possible,
3. Which one of us makes an application...she or me behalf?

[Directive/2004/38/EC]

Please post this to a separate NEW discussion. Different situation and different details.

[ciaramc]

Do you all think I should call an immigration lawyer in Ireland before leaving here ?????

Any help would be much appreciated

[yankeegirl]

Ciara, I definitely think it couldn't hurt to do so! You guys have enough worries, and I'm sure you don't want to be separated any longer than absolutely necessary. Do you have a definite date to leave Italy, or are you guys still in the planning stages? Before leaving, try to get as much info as is humanly possible to ensure everything is airtight when he makes his application.

[Directive/2004/38/EC]

I have said this before, and I will repeat it now.

I think it will be a lot easier for your husband to deal with things from within the EU. He may effectively loose his status as EU resident by moving to Morocco, at least in the eyes of some governments who you want to deal with (Ireland and Italy). He may then be starting from scratch.

Have you formally appealed the Italian decision? Have you considered remaining in Italy to appeal? Have you gotten Solvit involved? Do you have an immigration lawyer in Italy who knows EU law well? What does he/she say? I think they turned you down incorrectly, and I think an appeal should be pretty straight forward.

I suspect Ireland will be 80% likely to turn you down from Morocco and it will be more difficult for them to turn you down from Italy.

[brownbonno]

This is an interesting one.It will unwise to go back to Morocco for an application which will not be accepted by the irish Embassy under the EU rules.
Most importantly if husband has only breached the immigration rules without having any other criminal records,your best routes are-
Appeal the refusal there in Italy on the following grounds
1.They shouldn;t have allow the marriage when they know he will not be allowed to stay as a family member of EU citizen.
2.Taking such a long time for them to decide on the refusal is a breach of the free movement directives.

Below ECJ judgements give a clear pictures of the state of the directives on your case

Commission v Spain
The proceedings originated from two complaints submitted to the Commission by Community nationals exercising the right of freedom of movement conferred on them by the EC Treaty, whose spouses were refused a residence permit in Spain. The reason given was that they should first have applied for a residence visa at the Spanish consulate in their last country of domicile.

The Court reverted back to the approach followed in Carpenter and MRAX and held that a residence visa requirement imposed by Spanish legislation as a precondition for obtaining a residence permit and a refusal to issue such a permit to a third-country national who is a member of the family of a national of the EU, on the ground that they should first have obtained a residence visa from the Spanish consulate in their country of domicile, constituted a measure contrary to the provisions of Directives 68/360, 73/148 and 90/365. At paragraph 38 of the judgment, the Court reiterated that the right to enter the territory of a member state by a third-country national who is the spouse of a national of a member state derives from the family relationship alone.

Carpenter v Secretary of State for the Home Department
In the case of Carpenter v Secretary of State for the Home Department, the Court considered whether the spouse of a service provider, residing in one member state but providing services in other member states, qualified as the spouse of a Community national exercising his right of free movement. The Home Office had issued a deportation order against Mary Carpenter, a national of the Philippines who had overstayed the period of validity of her tourist visa and subsequently married a UK national. Mr Carpenter's business sold advertising space and offered various administrative and publishing services. A large proportion of the business's clientele were advertisers established in other member states. As a result Mr Carpenter frequently travelled to those states on business.

Having taken the view that Mr Carpenter's activities came within the ambit of Article 49 EC, the Court considered that if Mrs Carpenter was deported, her husband would have to relocate to the Philippines which would prevent him from exercising his right. When considering whether a restriction on Mr Carpenter's freedom to provide services could be justified, the Court bore in mind its effect on his right to respect for his family life within the meaning of Article 8 of the European Convention on Human Rights. On 11 July 2002 the Court ruled the separation of Mr and Mrs Carpenter would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises his freedom to provide services. The Court emphasised the need for proportionality and held that the decision to deport Mrs Carpenter, therefore, constituted an infringement, which could not be justified by invoking the protection and maintenance of public order and security.

[ciaramc]

Ok so first of all

My husband has no resident permit to stay in Italy so he is not an EU resident....well if you consider that he is living here with me well then he is!

We got married in July 2006- applied fro a resident permit in Jan 2007 as we were waiting 6 months for our marriage certificate then we had to collect all our documents! Got his finger prints taken for his permit May 2007 was called in Ausgust 2007 to produce more docs which we did!

Called in January 2008-asked to return 2 weeks later! Jan 2008 asked to return again two weeks later!

Feb returned again to immigration office asked to return again 1 month later....asked again to return in a month....we returned and they gave us a sheet of paper denying his permit as he had illegally entered the country several years before marrying and was asked to leave the country in 2005, which obviously he never did.

We have deposited a appeal with the Italian courts as of now we are awaiting a replyfor a date we have a lawyer but I do not think we will recieve a positive responce.....as Italy has just had election and the new government ar very much against clandestine....people! I also think the Italians are wrong it just seems tio be the lluck of the draw...I meet many people in similar situations to us at the immigration centre who had recieved a permit I can honestly say that my husband is not a criminal and we don`t know why they turned us down other than his illegal status

I can not afford to wait around another year to sort all of this out, here the Italian system is so slow! I know Ireland is just as bad!

I want to know that if he returns to Morocco and we apply under Irish law will we recieve a positive responce even though he was illel in Italy for so long?????

If I can not use EU law and use the Irish national laws what would I have to do????? Should I go to Ireland and get work before applying for his visa from Morocco????

We are planning to leave Italy in July I will go to Morocco with my husband for one month and a half return to Italy in September pack up our belongings and return to Ireland????? To look for a job, housing is not a problem! I have banks statements and savings ...

I just don`t know what to do as my husband has not seen his family in many years and we are tired!!!! I know its not ideal to leave Italy we are scared incase he will not be allowed to enter Ireland but at this stage we feel we have no choice but to leave the Italians will not give him a permit....we can fight it but how long will that take!



Directive/2004/38/EC- I understand your point of f\view that he is already in Europe ....but it does not seem to be working....we cannot seem to get anywhere we want to start our life which is buying a house starting a family but its just not possible in the situation we are in here!

[Directive/2004/38/EC]

Have you gotten Solvit involved?

[ciaramc]

No I have not should I contact the Italian Solvit???

[Directive/2004/38/EC]

There is one point of contact. Link is here http://eumovement.wordpress.com/help-eu-solvit/

[Directive/2004/38/EC]

My husband has no resident permit to stay in Italy so he is not an EU resident....well if you consider that he is living here with me well then he is!

Your husband IS resident in the EU. What he does not have (yet) is a Residence Card. The name was intentionally chosen to reflect that it is not a document of permission, but is simply a confirmation of the right’s he already has.

I want to know that if he returns to Morocco and we apply under Irish law will we recieve a positive responce even though he was illel in Italy for so long?????

I suspect not. I suspect they will turn him down (under Irish law) because he is of bad character (for having overstayed in Italy). I would be really surprised if you get a visa. But then maybe they are nice to Irish citizens.

If I can not use EU law and use the Irish national laws what would I have to do????? Should I go to Ireland and get work before applying for his visa from Morocco????

The Irish will turn him down. They will claim he was not legally resident in the EU and so EU rules do not apply.


Does your lawyer know EU case law well? Have you talked with immigrant support organizations in Italy for their advise?

Have you considered moving to another EU country in the Schengen zone? You could then work and settle a little and have a clear period of legal residence before trying to go back to Ireland. You just need to go there, register your address, find a job and apply for a Residence Card.

[Directive/2004/38/EC]

My husband has no resident permit to stay in Italy so he is not an EU resident....well if you consider that he is living here with me well then he is!

Since he is your husband, he is legally resident in Italy and does not require a Residence Permit. What he does not have is a Residence Card which documents his rights to reside and work.

I want to know that if he returns to Morocco and we apply under Irish law will we recieve a positive responce even though he was illel in Italy for so long?????

I very much doubt he will be admitted to Ireland under Irish law. From their perspective he has shown bad character by being illegally in Italy and I think they will turn him down.

If I can not use EU law and use the Irish national laws what would I have to do????? Should I go to Ireland and get work before applying for his visa from Morocco????

The Irish government claim that he would have required previous legal residence in an EU country. Since he does not have that, they say EU law does not apply to him and they will turn him down.


Is your lawyer very good and does he understand European law and especially European case law? Have you been in touch with immigrant rights groups in Italy for their advice on the situation?

[ciaramc]

Ok so I understand that he is resident here.....as he is married to me! But they will not give him this resident permit!!!! We are waiting for the appeal date but as of now we do not know when that will be!

The lawyer we have is an immigration lawyer....and sorry to tar them all with the same brush but they just tell you what they want you to hear!!!! I honestly don't think we are going to win the case!

I don't see how Ireland can turn me down because my husband is of bad character....I understand we will have a battle on our hands Im ready for that I just want to know will there be light at the end of the tunnel!

Have you considered moving to another EU country in the Schengen zone? You could then work and settle a little and have a clear period of legal residence before trying to go back to Ireland. You just need to go there, register your address, find a job and apply for a Residence Card.

I cannot go to another EU country and start again! It has been so hard for us here! I cannot imagine trying to do this again???? As you said,,,,,will another EU country not turn him down being of bad character and he would have to return to Morocco to apply for a visa to another EU/schengan so it would be the same as applying for Ireland where I really want to live????????