Spouse (with Irish visa) detained in Netherlands

[dalebutt]

@ op Be hopeful, there is always a way out, but i think they wont succeed in deporting him back to Kenya as far as he is still married to you, atleast your marriage certificate is genuine so i dont see why they will deport him back to Kenya. And I wouldnt say he got his stamp 4 by deception because if the passport was valid in the first place the Irish authority would still end up aprroving it. Their marriage is genuine, but he presented a counterfeit passport. passport is not a criteria for determining stam 4 approval. please get a good solicitor i think

[Directive/2004/38/EC]

From an EU free movement law perspective, member states are allowed deny free movement rights to prevent fraud.

Article 35 - Abuse of rights

Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.

In this case your husband has been traveling on a (somehow or other) falsely obtained passport. This raises a lot of issues for the member state.

You have not said this, but if the passport were in a false name, that makes it even more complicated.

Your immigration lawyer in NL should be able to tell you more. But I suspect your husband will need to be able to unambiguously identify himself and will need to get a new genuine passport.

[KariukiKabia]

Thanks again to everyone .I am not giving up !! His passport was in his real name, but through an error of judgement we have come to this.
He entered as an asylum seeker and to obtain his original documents is pretty impossible.I can only hope that some part of the Treaty directive can be used in our favour.It is very difficult to see away around it but I will never give up on him because our marriage is genuine and we love each other.
I see the comment about revoking residency because of marriages of convenience ,this is not the case for us.

[Directive/2004/38/EC]

If you are genuinely married and he is not lying about who he is, then there are only three reasons they can refuse your husband permission to be with you:
(1) He is a threat to national security
(2) He is a (large) public policy problem
(3) he has a serious (WHO listed?) contangeous disease that is a threat to public health

In normal situations, (2) is the only one which realistically is used.

Can he apply right now for a real passport from the Kenyan [corrected]?

Were all the personal details in the fake passport correct, such as full name, DOB, place of birth, citizenship? If so then it is likely, though not definitely, harder to claim he is misrepresenting who he is.

[Greenie]

If you are genuinely married and he is not lying about who he is, then there are only three reasons they can refuse your husband permission to be with you:
(1) He is a threat to national security
(2) He is a (large) public policy problem
(3) he has a serious (WHO listed?) contangeous disease that is a threat to public health

In normal situations, (2) is the only one which realistically is used.

Can he apply right now for a real passport from the Nigerians?

Were all the personal details in the fake passport correct, such as full name, DOB, place of birth, citizenship? If so then it is likely, though not definitely, harder to claim he is misrepresenting who he is.

I think he is Kenyan not Nigerian

These are the only grounds that a non EEA family member of an EEA national can be excluded, but he is not applying/living in Ireland under the EEA regs, but under Irish domestic immigration law (as he is living with his Irish spouse in Ireland) they may therefore be able to refuse him entry/a further visa for other reasons. The UK would certaintly refuse him now if he were the spouse of a UK national living in the UK under the UK immigration rules.

[Directive/2004/38/EC]

I am married to a Kenyan and I am British but I am resident in Ireland for the last 30 years.

My mistake: he is Kenyan as you point out. I have edited my mistake.

In this case it is a British citizen with non-EU spouse. EU free movement law definitely applies to them both in Ireland and in the Netherlands. It would also apply should they ever visit or move back to the UK.

[Greenie]

I am married to a Kenyan and I am British but I am resident in Ireland for the last 30 years.

My mistake: he is Kenyan as you point out. I have edited my mistake.

In this case it is a British citizen with non-EU spouse. EU free movement law definitely applies to them both in Ireland and in the Netherlands. It would also apply should they ever visit or move back to the UK.

Ahhh! Sorry - missed this - thanks for pointing this out!

[Directive/2004/38/EC]

I find it interesting an unusual that NL wants to deport him to Kenya. Even though they at the same time claim he does not have a documented link to the country.

Also, he has existing residence in Ireland. Ireland has not withdrawn his residence, and so you should be able to return there. You should expect problems from the Irish, but you can deal with those there.

[Greenie]

I find it interesting an unusual that NL wants to deport him to Kenya. Even though they at the same time claim he does not have a documented link to the country.

Also, he has existing residence in Ireland. Ireland has not withdrawn his residence, and so you should be able to return there. You should expect problems from the Irish, but you can deal with those there.

I don't find it unusual - in the UK they do the same - they would generally attempt to remove to the country of nationality. Sometimes they attempt to remove to the country from which he travelled/or where he was issued a visa but they are certaintly are not required to do this and where the person's residency in the third country is called into question they may decide not to remove to that country for fear he will be 'bounced back'. He certaintly can't travel back to ireland without a valid passport or travel document even with his Irish stamp4.

As he is claiming to be Kenyan this is presumably why they are seeking to remove to Kenya despite the fact that he doesn't have a valid passport - this is a common situation for people in detention in the UK too.

I wouldn't be so sure that the Irish have not withdrawn his residence - perhaps the Dutch authorities have contacted the Irish authorities already. All of this is just speculation - the OP's husband has a solicitor in the Netherlands who is in a far better postion to advise him.

[Directive/2004/38/EC]

He certaintly can't travel back to ireland without a valid passport or travel document even with his Irish stamp4.

...

I wouldn't be so sure that the Irish have not withdrawn his residence - perhaps the Dutch authorities have contacted the Irish authorities already. All of this is just speculation - the OP's husband has a solicitor in the Netherlands who is in a far better postion to advise him.

I have to disagree with you.

He can travel to Ireland, or another EU member state, without a passport. The ECJ case of MRAX is very clear.

1. On a proper construction of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.

I am not sure I would advise or encourage it without legal advice, but it is definitely an option. Note the requirement to "prove his identity and the conjugal ties".

The Irish may already know, but for EU citizens and for their families there is a whole process that needs to be followed in order to withdraw a Residence Card. It is not an automatic thing!

[Greenie]

He certaintly can't travel back to ireland without a valid passport or travel document even with his Irish stamp4.

...

I wouldn't be so sure that the Irish have not withdrawn his residence - perhaps the Dutch authorities have contacted the Irish authorities already. All of this is just speculation - the OP's husband has a solicitor in the Netherlands who is in a far better postion to advise him.

He certainly can travel to Ireland without a passport. The ECJ case of MRAX is very clear.

The Irish may already know, but for EU citizens and for their families there is a whole process that needs to be followed in order to withdraw a Residence Card. It is not an automatic thing!

He doesn't have a residence card - he has a stamp4 - unless I am mistaken and this is equivalent to a UK spouse visa.

[Greenie]

MRAX requires that he is able to prove his identity - which someone who has been found to be in possesion of a fraudelently obtained passport is going to find pretty hard to do. Thus he needs to establish his indentity and given his previous use of deception he may only be able to do this by providing a genuine Kenyan passport or travel document.

[Directive/2004/38/EC]

I suspect he has 4EUFam and the OP was being a little imprecise. In any case, even if a plain Irish Stamp4 has been withdrawn, he in general still has right of free movement as a spouse of an EU citizen.

It is odd the passport was destroyed so quickly. To the degree that makes it harder to answer the state's charges or seek legal redress, it may in fact act in the favor of the OP's husband.

In any case, the main point is that for EU free movement rights the OP needs to be able to prove:
(1) her identity
(2) his identity (this might be the problem)
(3) that there is a marriage relationship (apparently this is not in doubt)

[Greenie]

I suspect he has 4EUFam and the OP was being a little imprecise. In any case, even if a plain Irish Stamp4 has been withdrawn, he in general still has right of free movement as a spouse of an EU citizen.

It is odd the passport was destroyed so quickly. To the degree that makes it harder to answer the state's charges or seek legal redress, it may in fact act in the favor of the OP's husband.

In any case, the main point is that for EU free movement rights the OP needs to be able to prove:
(1) her identity
(2) his identity (this might be the problem)
(3) that there is a marriage relationship (apparently this is not in doubt)

It sounds to be that it perhaps was not destroyed straight away, he was charged with a criminal offence and later acquited, the Kenyan authorities have verified that the document was fraudulently issued, he doesn't dispute this. The document is of no use to him now because he wasn't entitled to it (regardless of the fact that it had his name and DOB on) the issuing authorities are saying he is not entitled to it. He therefore needs to prove his indentity.

KariukiKabia I suggest that you seek advice from an Irish immigration lawyer if you have not already done so.

[Directive/2004/38/EC]

Thanks again to everyone .I am not giving up !! His passport was in his real name, but through an error of judgement we have come to this.
He entered as an asylum seeker and to obtain his original documents is pretty impossible.I can only hope that some part of the Treaty directive can be used in our favour.It is very difficult to see away around it but I will never give up on him because our marriage is genuine and we love each other.
I see the comment about revoking residency because of marriages of convenience ,this is not the case for us.

How has this turned out?