Moving to Ireland with a non-EU sister (household member)

[notrouble]

Hey all,

I am an Irish citizen and live/work in Italy. My 18 year old sister is a non-EU national (Russian) and lives with me in Italy. She is recognised by the Italian government as my dependent and she has a permission to remain as a family member of an EU/Italian citizen. However, her card was issued only for 2 years (unlike some other Italian residency permits for the direct relatives of EU citizens that are issued generally for 5 years).

I am planning to return to Ireland in about 6 months as my contract here in Italy is coming to an end. I have some savings but have no job waiting for me in Ireland, not yet anyway. Our elder brother also lives in Ireland with his family and they own a house, so I won't be stuck for accomodation or anything like that.

The only problem is that I am not sure about what I will need to do to ensure my sister can return with me to Ireland.

1) Will I need to apply for an Irish visa for her now that I will have to return to Ireland? Or will she be able to go to Ireland visa-free as a member of my household in Italy under the EU Directive 2004/38/EC (since I am an Irish citizen who is currently excercising his EU rights in another EU State and returning to Ireland)? I have attempted emailing the Irish Embassy in Rome, but have not heard back from them...

2) When in Ireland, will my sister be recognised under the EU Directive 2004/38/EC as my dependent? My understanding is that she be able to apply for a residency card in Ireland since I am an Irish citizen returning from another EU State?

On the other hand, as an Irish citizen, I am not subject to any conditions and can stay for any period (unlike other EU citizens who have to prove they are looking for a job, or that they are students, or that they are independently wealthy)?

3) I will most likely be moving to Spain after about 8 months in Ireland (for work again). Will we be able to complete all formalities within that timeframe?

4) Will my sister be able to stay in Ireland in case I have to go to Spain? She will be starting her college studies from next year, and I assume that she will qualify to pay EU fees in Ireland (similar to Italy) should she go to a college in Ireland?

Thanks for your advice!

[Directive/2004/38/EC]

I am an Irish citizen and live/work in Italy. My 18 year old sister is a non-EU national (Russian) and lives with me in Italy. She is recognised by the Italian government as my dependent and she has a permission to remain as a family member of an EU/Italian citizen. However, her card was issued only for 2 years (unlike some other Italian residency permits for the direct relatives of EU citizens that are issued generally for 5 years).

Are you just Irish + Russian, or do you also have Italian citizenship?

Why was she only given two years? When does that expire?

1) Will I need to apply for an Irish visa for her now that I will have to return to Ireland? Or will she be able to go to Ireland visa-free as a member of my household in Italy under the EU Directive 2004/38/EC (since I am an Irish citizen who is currently excercising his EU rights in another EU State and returning to Ireland)? I have attempted emailing the Irish Embassy in Rome, but have not heard back from them...

She has an Italian Residence Card so she should be able to enter Ireland without a visa. Maybe you should fly to Ireland for a day on Ryanair to see that works fine...

2) When in Ireland, will my sister be recognised under the EU Directive 2004/38/EC as my dependent? My understanding is that she be able to apply for a residency card in Ireland since I am an Irish citizen returning from another EU State?

not sure. Check the law. http://eumovement.wordpress.com/eu-coun ... o-ireland/

3) I will most likely be moving to Spain after about 8 months in Ireland (for work again). Will we be able to complete all formalities within that timeframe?

Hopefully but depends on whether DOJ fights. If she was your spouse it would be straight forward.

4) Will my sister be able to stay in Ireland in case I have to go to Spain? She will be starting her college studies from next year, and I assume that she will qualify to pay EU fees in Ireland (similar to Italy) should she go to a college in Ireland?

Just like right now, you can leave your host member state for up to 6 months without affecting your (the EU citizen) residence. If you leave for longer than that then you loose your Irish residence, and so will your sister.

[notrouble]

1)

I am an Irish citizen and live/work in Italy. My 18 year old sister is a non-EU national (Russian) and lives with me in Italy. She is recognised by the Italian government as my dependent and she has a permission to remain as a family member of an EU/Italian citizen. However, her card was issued only for 2 years (unlike some other Italian residency permits for the direct relatives of EU citizens that are issued generally for 5 years).

Are you just Irish + Russian, or do you also have Italian citizenship?

I'm Irish/Russian only and do not have the Italian nationality.

2)

Why was she only given two years? When does that expire?

I believe it is a common practice here in Italy to issue these cards valid for 2 years to non-direct relatives of Italian/EU nationals (non-direct here in Italy means up to the second grade, basically one's brothers/sisters) who reside at the same address as the Italian/EU national. Her current Italian residence card will expire in about 20 months.

3)

2) When in Ireland, will my sister be recognised under the EU Directive 2004/38/EC as my dependent? My understanding is that she be able to apply for a residency card in Ireland since I am an Irish citizen returning from another EU State?
not sure. Check the law. http://eumovement.wordpress.com/eu-coun ... o-ireland/

Thanks for this link. Am I right to say that my sister does not have an automatic right to residency in Ireland, but Ireland will have to consider it since she is a member of my household in another EU state?

[Directive/2004/38/EC]

Your sister is in the category of "other beneficiaries"

Ireland seems to deal smoothly with this category when the EU citizen is not Irish. (the user Ben has had some experience with this if you look through his past posts).

It might or might not be a problem that you are Irish returning to Ireland after working abroad. (In the UK that is currently a problem). But give it a try, and definitely tell us how it goes!

[Ben]

Hi notrouble,

When an Irish citizen returns to Ireland after having pursued economic activity in another EU member state, an ECJ ruling is invoked, commonly called the "Surinder Singh" condition. The wording of the judgement is basically that the EU national is entitled to bring his spouse with him.

Member states generally extend this to "family members", not just spouses. Family members are defined in Article 2(2) of EU Directive 2004/38/EC. However, your 18 year old sister who is a member of your household is not a family member defined in Article 2(2), but is a "beneficiary", described in Article 3(2).

Member states are not obliged to extend the provision of Singh to beneficiaries and I know of none that do.

Ireland now recognises that possession of a valid residence card issued by another member state exempts the holder from the requirement to hold a valid Irish visa for entry to Ireland. So your sister should be able to enter Ireland with ease.

The subsequent acquisition of an Irish residence card would only be as a result of the Irish Department of Justice either being lenient or ignorant when deciding the application.

If you were to become an Italian citizen prior to moving back to Ireland, your sister's residence here would be guaranteed.

[86ti]

So what are the options for the sister then? We are obviously within the EEA regime here an the EEA national cannot be just prevented from returning home.

[Ben]

Of course an Irish citizen cannot be prevented from moving to Ireland. However, the rules don't provide that the sister can join her.

Based on the info given, the sister will have to either return to Russia or remain in Italy if she has acquired the right of permanent residence there.

Unless A) the OP wants to wait until he has acquired Italian nationality or B) they want to enter Ireland and apply for a residence card anyway, and either rely on the leniency or ignorance of the DoJ, or be prepared for a potentially lengthy fight (even then, the result might not be positive).

[86ti]

Irrespective of what the current law or the CJEU has said so far, I think the question I pose here is a little bit more fundamental: if her sister cannot join her could that prevent the OP from returning to Ireland?

[Ben]

if her sister cannot join her could that prevent the OP from returning to Ireland?

Were the sister a child, possibly. I agree it would be the basis for a good argument. However, the sister in this case is an adult.

[86ti]

As long as the sister qualifies as a beneficiary that should not matter. Simple argument: the sister must be assessed in the very same way as the sister of any other EEA national who wishes to relocate to Ireland.

[Ben]

As long as the sister qualifies as a beneficiary that should not matter. Simple argument: the sister must be assessed in the very same way as the sister of any other EEA national who wishes to relocate to Ireland.

Why would you say that?

[notrouble]

However, the problem is that I cannot send my sister off to somewhere, since she depends on me (including financially) and she is a member of my household here in Italy.

My understanding was that I could submit an application for a residency card for my sister, since I am an Irish citizen moving from Italy to Ireland, so my family members qualify under the EU Directive.

http://www.inis.gov.ie/en/INIS/Pages/EU ... FAQs#irish

Q.8 I am an Irish National. Can my non EEA family members apply for EU Treaty Rights?

A The Directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. (Article 3 of Directive 2004/38/EC)
If, as an Irish national, you have exercised your EU Treaty Rights in another Member State with your family member and have now returned to Ireland you may apply.

Evidence of having exercised your EU Treaty Rights in the other Member State in respect of you and your family member must be submitted with the application along with all other relevant documentation.

[Ben]

notrouble,

The crux of the matter is that your sister is not a "family member" as per the EU definition, she is a "beneficiary".

As I mentioned, a residence card application may be successful due to the ignorance of the officer processing it, but, according to the rules, your sister doesn't qualify and you need to be aware of this.

[86ti]

As long as the sister qualifies as a beneficiary that should not matter. Simple argument: the sister must be assessed in the very same way as the sister of any other EEA national who wishes to relocate to Ireland.

Why would you say that?

This is obviously primarily my personal opinion how free movement should work. EEA law allows beneficiaries to benefit from this law provided that certain conditions are satisfied, essentially that 'true' family links exist. The reason why beneficiaries have been included in the first place is that having to leave such family members behind could mean obviously that the EEA national is effectively prevented from making use of his/her free movement rights. An EEA national returning to his/her country of nationality is still a matter of free movement. If that is so, why would only direct family members be able to benefit from EEA regulations but suddenly extended family members not anymore?

[86ti]

Q.8 I am an Irish National. Can my non EEA family members apply for EU Treaty Rights?

A The Directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. (Article 3 of Directive 2004/38/EC)

Quoting Article 3 here is actually quite misleading because that's the very same article that deals with extended family members.

[notrouble]

Ben, I hear you, but I have heard of some other cases where brothers/ sisters were able to join their EU national relatives in Ireland. One example is your brother-in-law... I do note however that you are of British nationality. On the other hand, I do not see why the Irish government would treat me differently to another EU national when I am returning to Ireland from another EU state. Furthermore, I could not find a definition of family members on the INIS's website, am I correct to assume it is generic as per the EU Directive, or is there another definition?

Also, the EU1 form on the INIS's website (http://www.inis.gov.ie/en/INIS/Form%20E ... eaflet.pdf) lists the range of family members and how to prove the relationship. On page 3, it reads:
(b) Evidence of relationship with the EU citizen
then they go on listing children, spouses, parents, and then they have another paragraph:
For other family members:
•Satisfactory evidence of relationship with the EU citizen
•Evidence of dependency on the EU citizen, including dependency prior to residing in the State OR evidence of membership of the EU citizen's household OR medical evidence, including a medical report from a physician, hospital etc., that you require the personal care of the EU citizen for health reasons

[Ben]

As long as the sister qualifies as a beneficiary that should not matter. Simple argument: the sister must be assessed in the very same way as the sister of any other EEA national who wishes to relocate to Ireland.

Why would you say that?

This is obviously primarily my personal opinion how free movement should work. EEA law allows beneficiaries to benefit from this law provided that certain conditions are satisfied, essentially that 'true' family links exist. The reason why beneficiaries have been included in the first place is that having to leave such family members behind could mean obviously that the EEA national is effectively prevented from making use of his/her free movement rights. An EEA national returning to his/her country of nationality is still a matter of free movement. If that is so, why would only direct family members be able to benefit from EEA regulations but suddenly extended family members not anymore?

I do see your point. Also, I do wonder why "spouse" in the Singh ruling seems to have been voluntarily extended to "family members" by member states, but not to "beneficiaries".

This FoI request to the UK authorities might be relevant here:
http://www.whatdotheyknow.com/request/i ... ming-80849

Certainly the UK and Ireland are extending Singh provisions to family members. I believe this extension is EU-wide. I find it hard to believe that they're actually doing this voluntarily. Perhaps there was a subsequent ruling to Singh that I'm not aware of, that dealt with family members and not solely spouses?

Q.8 I am an Irish National. Can my non EEA family members apply for EU Treaty Rights?

A The Directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. (Article 3 of Directive 2004/38/EC)

Quoting Article 3 here is actually quite misleading because that's the very same article that deals with extended family members.

The DoJ made a mistake there. They should have written Article 2, not 3.

[86ti]

Certainly the UK and Ireland are extending Singh provisions to family members. I believe this extension is EU-wide. I find it hard to believe that they're actually doing this voluntarily. Perhaps there was a subsequent ruling to Singh that I'm not aware of, that dealt with family members and not solely spouses?

Eind uses 'family member'. Not sure if it s defined somewhere there but in principle also beneficiary are treated as a family members after having passed 'the checks' (Obie's argument).

Q.8 I am an Irish National. Can my non EEA family members apply for EU Treaty Rights?

A The Directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. (Article 3 of Directive 2004/38/EC)

Quoting Article 3 here is actually quite misleading because that's the very same article that deals with extended family members.

The DoJ made a mistake there. They should have written Article 2, not 3.

I think they are referring there to 3(1).

[Ben]

Ben, I hear you, but I have heard of some other cases where brothers/ sisters were able to join their EU national relatives in Ireland. One example is your brother-in-law... I do note however that you are of British nationality.

Exactly, which means Singh and it's conditions are not relied upon.

On the other hand, I do not see why the Irish government would treat me differently to another EU national when I am returning to Ireland from another EU state.

Your are entitled to benefit from the provisions of applicable ECJ rulings.

Furthermore, I could not find a definition of family members on the INIS's website, am I correct to assume it is generic as per the EU Directive, or is there another definition?

Ireland's transposition of Directive 2004/38/EC is the European Communities (Free Movement of Persons) (No. 2) Regulations 2006. "Family members" are transposed as "qualifying family members" and "beneficiaries" are transposed as "permitted family members". Interestingly, since the latter includes the word "family member", that in itself may help your sister, should she make an application.

Also, the EU1 form on the INIS's website (http://www.inis.gov.ie/en/INIS/Form%20E ... eaflet.pdf) lists the range of family members and how to prove the relationship. On page 3, it reads:
(b) Evidence of relationship with the EU citizen
then they go on listing children, spouses, parents, and then they have another paragraph:
For other family members:
•Satisfactory evidence of relationship with the EU citizen
•Evidence of dependency on the EU citizen, including dependency prior to residing in the State OR evidence of membership of the EU citizen's household OR medical evidence, including a medical report from a physician, hospital etc., that you require the personal care of the EU citizen for health reasons

Indeed, but the form is primarily for when the EU national is not an Irish national and thus subject to more restrictions.

Look, personally I think your sister has a fairly good chance. She should be able to enter the country without a problem. Once here, she should submit her application and I think there's a good possibility that the application will be successful. Especially under the circumstances you have described, hypothetically speaking I think that if your sister's case were to reach the ECJ the judge would rule in her favour and this would set a precedent. Ireland will know this and would therefore want to avoid it.

[notrouble]

"Family members" are transposed as "qualifying family members" and "beneficiaries" are transposed as "permitted family members".

I have checked the document that you mentioned (European Communities (Free Movement of Persons) (No. 2) Regulations 2006.).

According to it (see p.2):

Interpretation
2. (1) In these Regulations -
... “family memberâ€

[Ben]

"Family members" are transposed as "qualifying family members" and "beneficiaries" are transposed as "permitted family members".

I have checked the document that you mentioned (European Communities (Free Movement of Persons) (No. 2) Regulations 2006.).

According to it (see p.2):

Interpretation
2. (1) In these Regulations -
... “family memberâ€