Treaty Rights, citizens of both Ireland and other EU country

[jeupsy]

Hi,

I would like to know if the partner of someone who is both a citizen or Ireland and another EU country (lets say Germany) is entitled to apply for a stamp 4 EU FAM under EU treat rights (Directive 2004/38/EC).

I do understand that as the partner of an citizen of Ireland it is not possible to obtain a stanp 4 EUFAM (except when returning from another EU country). But if the person is both Irish and German is it possible to provide the German passport in the application and obtain the card for their partner based on that identity; or does Irish identity always prevail and prevents from using the German one.

In other words and to sumerize, is he condition that the partner holds a European passport AND NO IRISH PASSPORT AT ALL, or that they hold at least one European passport which is not an Irish one?

Cheers!

[Brigid from Ireland]

The EU citizen uses the German passport to exercise their rights in Ireland.

[Malika]

The EU citizen uses the German passport to exercise their rights in Ireland.

It can become complicated especially if the said person is resident in Ireland..........Someone here went through the process in getting a partner residency. The person had go give up one Citizenship,British or Irish. (can't remember which)

Monife is well versed in EU Treaty Rights.

Regards,

[jeupsy]

Thanks Brigid/Malika.

Yes I also think it is not that simple.

It probably depends on the exact wording of the implementation of the European directive into Irish law.

If it says the sponsor must be an EU citizen which is not a national of Ireland; then it can be argued that as long as you are Irish you are excluded (in that case it would specifically say you cannot be Irish).
If it says the sponsor must be a national of an other EU country than Ireland, then as long as you are German you should be included (in that case it wouldn't specifically say that you cannot be Irish).

The other potential issue I can see is that the directive says that the EU citizen must have exercised their free movement right to enter their host country.
I guess if you are both German and Irish, it could be argued that in order to enter Ireland you don't need to exercice your EU free movement right because as you are Irish you are free to enter anyway.

In my case though, the German citizen first entered Ireland as a German national only, and has now became an Irish national through naturalisation. So I guess he did exercise his free movement right ... but as it probably is a pretty specific case; it is difficult to know whereas the immigration officers would take that into account when reviewing the application (plus they could say that the first time you leave Ireland for holidays as an Irish and come back then you are not under the EU free movement case anymore).

I will hope Monife has a look at this topic then

[jeupsy]

***

[jeupsy]

Bumping up the topic - does someone have a good understanding or experience regarding dual citizenship and EU Treaty Rights? (I tried to email the INIS EU Treaty Rights section last week - but not answer)

Thanks a lot.

[Monifé]

It will work if the person was born a German national (in Germany) and moved to Ireland, and after that, obtained Irish citizenship. They will have already exercised their freedom of movement by moving from Germany to Ireland, therefore, the German citizenship will prevail.

If the person was born in Ireland, but also inherited German citizenship through descent or some other means, then it would not work, unless they have moved to and resided/worked in another EU country.

For example, my own case. I am an Irish national and inherited British citizenship from my parents. I have never lived in another country other than the Republic of Ireland. My husband (he was my fiancé when he applied) applied for a residence card under the directive 2004/38/EC on the basis of our durable relationship. I had previously obtained a permanent residence certificate using my British passport. They strung us along for 4 months and then refused our application because they only considered me an Irish national.

Our solicitors sought a Judicial Review against them, for which leave was granted. It never made it to the High Court because while we were waiting for our date, the McCarthy case happened in England (similar story to mine but with opposite citizenships), which stated that you need to exercise freedom of movement in order to avail of EU law. So we were advised to withdraw our case, get married and apply as the spouse of Irish national under Irish national law.

So, to summarise again, if you were born in Ireland and have lived here all your life, no amount of various EU citizenships will give you any right under EU law for immigration purposes.

If you were born in another EU country other than Ireland and hold that citizenship, then you will be afforded rights under EU law.

If you were born in Ireland and moved to another EU country for work with your spouse, you may return to Ireland and be considered under EU law (Surinder Singh).

[jeupsy]

Thank you VERY MUCH Monifé.

Ok, I had a similar understanding to yours, hopefully we are right about the case of people who became Irish after entering Ireland with another EU citizenship. I read about the case in the UK but I wasn't quite sure what Ireland's position is regarding this ... But based on your experience it is similar to the UK (except I think in the UK they "took advantage" of the ECJ judgement to write into local law that EUTR rules don't apply to any dual British-EU nation regardless on how they became British, which is a bit of a stretch).

Anyway thanks again, this exactly answers my question.