Dual citizens exercising Treaty Rights

[19ant77]

Hi folks

I have some qns if you could try to shed light on them it would be great. I was born in NI.

1. Can s/one with an Irish and UK p/port exercise Treaty Rights in NI or ROI?

2. If I were to apply for an Irish spouse visa for my non - eu wife to live in ROI , would the fact I have an British p/port go against me? Would it help my wife's application if I moved there first, rented a house and got a job?

3. Has a/one experienced the visa process since the new Directive? Dec 2013 was introduced?

Cheers

[jeupsy]

In NI the application would most likely be rejected as they UK made it clear that if you are British, this is the only passport they will look at for immigration purposes - so they will not accept an EUTR application from your wife.

But applying in the ROI using your British passport should work for you (ireland hasn't clearly stated their position about dual citizenship, but they don't seem to have stopped anyone until now). Basically in the south you have two options: either apply as a British under EUTR, or as an Irish under national immigration laws. Each way has it's own advantages and disadvantages.
EUTR is better in the sense that they can't take ages to process the application or refuse easily if you meet the requirements she will get 5 years and will be apply to travel with you to most european countries without a visa. But the disadvantage is that her legal status will always depend on the fact that you are exercising treaty rights, so if you stop working or studying she doesn't have anymore right to stay here.

[19ant77]

thanks Jeupsy - pretty clear answer

I have a few more qns if you dont mind

If I went the Treaty route, would my wife be able to apply for an Irish passport after several years?

Would the fact that my kids have Irish p/ports be a a factor? Would I need to go to Ireland and get a job first then invite my wife? Would we have to meet any financial reqs?

In NI the application would most likely be rejected as they UK made it clear that if you are British, this is the only passport they will look at for immigration purposes - so they will not accept an EUTR application from your wife.

But applying in the ROI using your British passport should work for you (ireland hasn't clearly stated their position about dual citizenship, but they don't seem to have stopped anyone until now). Basically in the south you have two options: either apply as a British under EUTR, or as an Irish under national immigration laws. Each way has it's own advantages and disadvantages.
EUTR is better in the sense that they can't take ages to process the application or refuse easily if you meet the requirements she will get 5 years and will be apply to travel with you to most european countries without a visa. But the disadvantage is that her legal status will always depend on the fact that you are exercising treaty rights, so if you stop working or studying she doesn't have anymore right to stay here.

[Brigid from Ireland]

There are no financial requirements.
The requirement is that you are moving from a country where you have worked (such as the UK) to look for work in another EU country. Your wife can travel with you on this basis if you have your EU passport, her passport and an original marriage certificate. If you are stopped by immigration you just say 'She is my spouse and I intend to look for work'. She has the right to stay for three months in Ireland, to allow you to find work, and there are no conditions associated with this first three months stay. When you get work she will be issued with a six month visa and then at the end of the six months if you are still working she will get a 5 year visa.
She can apply for Irish citizenship after three years (wife of Irish citizen) or five years (five years residing legally in Ireland).
Note that as she has Irish citizen children it is a waste of time for any state official to ever try to deport her, if the children are minors under 18 years, as the children can take lawsuits to prevent the deportation of their mother - they are entitled under Irish law to her care and support. So she is 95% safe from deportation as soon as she sets foot on Irish land, so long as she has her citizen child with her, even if you can't get work at all.
When you get your first payslip, send a copy of this with your child benefit application (130 per month per child). If you get a job which is 19/20 hours per week but is poorly paid, then you can apply for FIS - this is for parent on low wages, so send another copy of the first payslip with this application, together with a letter from the employer saying you will be working 20 (or more than 20) hours per week. That should come through within 6-8 weeks. You should also apply for a medical card, as GP/medicines are not free here unless you have a medical card.
If money is scarce, you can try to pick a location that has cheap property to rent, as this can be easier financially than trying to pay Dublin rents for a family home.
Edited to add that one of the conditions when Ireland left the UK was that people who are entitled to citizenship of both UK and Ireland must be treated by Ireland as citizens of whichever country they preferred. This means that Irish citizenship cannot be imposed upon you. If the only documentation that you present to Irish officials (immigration, police, social welfare, tax) is proof of UK citizenship then they are required to treat you as a foreign UK citizen. It is only when/if you present an Irish passport or claim Irish citizenship in writing or verbally that you can be treated as an Irish citizen. So when you complete forms for tax/social welfare... which are asking your citizenship you should always answer 'British' as if you answer 'Irish' you can be treated as an Irish person. This is because the Anglo Irish (some of whom had never been to the UK in their lives) wanted to remain UK citizens after Irish independence and this was guaranteed in the treaty negotiations. So if you have an Irish passport leave it with your parents in the UK and travel here solely as a UK citizen on a UK passport. Irish officials are specifically forbidden to impose Irish citizenship on UK nationals who don't want to exercise their Irish citizenship. This rule is buried in old treaty documents circa 1922, but I am fairly sure it has never been repealed.

[19ant77]

Thanks Brigid - its quite surprising that I would have to use my UK p/port to settle in Ireland eventhough I consider myself Irish

Would the fact we have lived outside the EU for the past 6 years be a factor in exercising Treaty Rights?

There are no financial requirements.
The requirement is that you are moving from a country where you have worked (such as the UK) to look for work in another EU country. Your wife can travel with you on this basis if you have your EU passport, her passport and an original marriage certificate. If you are stopped by immigration you just say 'She is my spouse and I intend to look for work'. She has the right to stay for three months in Ireland, to allow you to find work, and there are no conditions associated with this first three months stay. When you get work she will be issued with a six month visa and then at the end of the six months if you are still working she will get a 5 year visa.
She can apply for Irish citizenship after three years (wife of Irish citizen) or five years (five years residing legally in Ireland).
Note that as she has Irish citizen children it is a waste of time for any state official to ever try to deport her, if the children are minors under 18 years, as the children can take lawsuits to prevent the deportation of their mother - they are entitled under Irish law to her care and support. So she is 95% safe from deportation as soon as she sets foot on Irish land, so long as she has her citizen child with her, even if you can't get work at all.
When you get your first payslip, send a copy of this with your child benefit application (130 per month per child). If you get a job which is 19/20 hours per week but is poorly paid, then you can apply for FIS - this is for parent on low wages, so send another copy of the first payslip with this application, together with a letter from the employer saying you will be working 20 (or more than 20) hours per week. That should come through within 6-8 weeks. You should also apply for a medical card, as GP/medicines are not free here unless you have a medical card.
If money is scarce, you can try to pick a location that has cheap property to rent, as this can be easier financially than trying to pay Dublin rents for a family home.
Edited to add that one of the conditions when Ireland left the UK was that people who are entitled to citizenship of both UK and Ireland must be treated by Ireland as citizens of whichever country they preferred. This means that Irish citizenship cannot be imposed upon you. If the only documentation that you present to Irish officials (immigration, police, social welfare, tax) is proof of UK citizenship then they are required to treat you as a foreign UK citizen. It is only when/if you present an Irish passport or claim Irish citizenship in writing or verbally that you can be treated as an Irish citizen. So when you complete forms for tax/social welfare... which are asking your citizenship you should always answer 'British' as if you answer 'Irish' you can be treated as an Irish person. This is because the Anglo Irish (some of whom had never been to the UK in their lives) wanted to remain UK citizens after Irish independence and this was guaranteed in the treaty negotiations. So if you have an Irish passport leave it with your parents in the UK and travel here solely as a UK citizen on a UK passport. Irish officials are specifically forbidden to impose Irish citizenship on UK nationals who don't want to exercise their Irish citizenship. This rule is buried in old treaty documents circa 1922, but I am fairly sure it has never been repealed.

[chaoclive]

You're looking to exercise treaty rights in Ireland so you can't be Irish. People don't have the right to 'exercise treaty rights' in a country of which they have citizenship, i.e. you in Ireland (and, technically the UK). If no-one asks you, don't mention that you're Irish! This is really important.

However, if you are applying for the Irish spouse visa, you will have to show your Irish passport.

Make sure you clearly distinguish between the 2 options!

[Brigid from Ireland]

If you just want to settle in Ireland on your own with your Irish citizen children then your Irish passport is best for this option, as Ireland cannot deport an Irish citizen. The difficulty is that you have a non-EU wife.
She has two options.
1. She can apply as the spouse of an Irish citizen - it is possible for immigration to refuse permission for the spouse of an Irish citizen to travel to Ireland/to live in Ireland. If you apply on this basis and are refused you can obviously appeal, but you cannot then switch to option 2.
2. She can apply as the spouse of an EU migrant worker. In this case EU law requires that she be granted an Irish visa with a three month limit. She will get the visa within 21 days on production of passports and marriage cert. If you have a job by the end of that 3 month period then she is granted a six month visa and at the end of the six months she is granted a 5 year visa. By the time the 5 year visa expires she should be a citizen.

The basic difference between 1 and 2 is that 1 is governed by Irish law only (as it only affects Irish citizens, so the EU is not interested), so she can be refused permission to come here under Irish law. 2 is governed by EU law and under EU law a person exercising this option must be granted a visa (unless they are a terrorist or something equally bad). That is why people are choosing option 2.

I'm open to correction, but I think the rule is that people can't exercise migrant worker rights in the country where they have worked for the last several years. I am familiar with a lot of UK citizens who came to Ireland to work, and got their non-Eu spouse a visa for Ireland under migrant worker rights. Then about a year later they got a job in the Uk and got a migrant worker visa for the spouse to go with them back to the UK. Basically if an EU citizen moves from one country to another for work his spouse can go with him. So some people move from their own country to another one for about a year, and then they can go back to their own country with their spouse.

[19ant77]

Thanks Brigid - all clear

If you just want to settle in Ireland on your own with your Irish citizen children then your Irish passport is best for this option, as Ireland cannot deport an Irish citizen. The difficulty is that you have a non-EU wife.
She has two options.
1. She can apply as the spouse of an Irish citizen - it is possible for immigration to refuse permission for the spouse of an Irish citizen to travel to Ireland/to live in Ireland. If you apply on this basis and are refused you can obviously appeal, but you cannot then switch to option 2.
2. She can apply as the spouse of an EU migrant worker. In this case EU law requires that she be granted an Irish visa with a three month limit. She will get the visa within 21 days on production of passports and marriage cert. If you have a job by the end of that 3 month period then she is granted a six month visa and at the end of the six months she is granted a 5 year visa. By the time the 5 year visa expires she should be a citizen.

The basic difference between 1 and 2 is that 1 is governed by Irish law only (as it only affects Irish citizens, so the EU is not interested), so she can be refused permission to come here under Irish law. 2 is governed by EU law and under EU law a person exercising this option must be granted a visa (unless they are a terrorist or something equally bad). That is why people are choosing option 2.

I'm open to correction, but I think the rule is that people can't exercise migrant worker rights in the country where they have worked for the last several years. I am familiar with a lot of UK citizens who came to Ireland to work, and got their non-Eu spouse a visa for Ireland under migrant worker rights. Then about a year later they got a job in the Uk and got a migrant worker visa for the spouse to go with them back to the UK. Basically if an EU citizen moves from one country to another for work his spouse can go with him. So some people move from their own country to another one for about a year, and then they can go back to their own country with their spouse.

[19ant77]

Thanks Brigid - all clear

I forgot to ask

will immigration not ask where my kids got their irish p/ports from?

If you just want to settle in Ireland on your own with your Irish citizen children then your Irish passport is best for this option, as Ireland cannot deport an Irish citizen. The difficulty is that you have a non-EU wife.
She has two options.
1. She can apply as the spouse of an Irish citizen - it is possible for immigration to refuse permission for the spouse of an Irish citizen to travel to Ireland/to live in Ireland. If you apply on this basis and are refused you can obviously appeal, but you cannot then switch to option 2.
2. She can apply as the spouse of an EU migrant worker. In this case EU law requires that she be granted an Irish visa with a three month limit. She will get the visa within 21 days on production of passports and marriage cert. If you have a job by the end of that 3 month period then she is granted a six month visa and at the end of the six months she is granted a 5 year visa. By the time the 5 year visa expires she should be a citizen.

The basic difference between 1 and 2 is that 1 is governed by Irish law only (as it only affects Irish citizens, so the EU is not interested), so she can be refused permission to come here under Irish law. 2 is governed by EU law and under EU law a person exercising this option must be granted a visa (unless they are a terrorist or something equally bad). That is why people are choosing option 2.

I'm open to correction, but I think the rule is that people can't exercise migrant worker rights in the country where they have worked for the last several years. I am familiar with a lot of UK citizens who came to Ireland to work, and got their non-Eu spouse a visa for Ireland under migrant worker rights. Then about a year later they got a job in the Uk and got a migrant worker visa for the spouse to go with them back to the UK. Basically if an EU citizen moves from one country to another for work his spouse can go with him. So some people move from their own country to another one for about a year, and then they can go back to their own country with their spouse.

[chaoclive]

Don't think they will care. Don't forget that the children of British citizens born in Northern Ireland can also apply to get Irish passports. None of my family has an Irish passport except me！

[Brigid from Ireland]

They won't care about the kids. They can't refuse entry to Irish citzen children. They don't need a visa.

The only issue is the non-EU wife. The core point for her is that her husband is an EU citizen who has not worked in Ireland during the past year. He is travelling to Ireland to look for work and she is travelling with him, in possession of her passport and marriage cert. Those simple points make her the wife of a migrant worker, and that is what she needs. On this basis your wife will get a visa within 21 days of applying for one. (The kids don't need to apply for a visa so immigration won't know or care that they exist). Immigration is being asked to do one simple thing - give a visa to the wife of a migrant worker who has produced her passport, his passport and marriage cert. Immigration must comply, as they have no valid reason to refuse.

I'm assuming your wife is from a country where people need a visa to come to Ireland. If she is non visa requried she can simply travel to Ireland and apply for permission to remain on a longer term when she is actually in Ireland.