EU TREATY RIGHTS AND APPLICATIONS FOR NATURALISATION

We have recently made several applications for naturalisation on behalf of applicants who satisfy the reckonable residency criteria on the basis of their EU Family residence card. In these cases, the applicants have been issued with EU Family residence cards and Stamp 4 permission for five years on the basis that they are a family member of a Union citizen who is exercising their Treaty rights in the State. 

Ordinarily, the applicant is the spouse of a Union citizen who is working in the State. Several of these applications have been made prior to the applicant attaining five years permission to remain from the date of their actual grant of Stamp 4 permission by the EU Treaty Rights Section. For various reasons, they have sought to make the application earlier. We have made the argument on their behalf that they enjoyed an entitlement to reside since their date of marriage to the Union citizen and that their reckonable residency should be calculated from the date of marriage. 

Until recently we had encountered no difficulties with this submission. However in the last two weeks, we have received refusals in two such cases. In both of these cases, the Citizenship Unit have explicitly stated that EU family permission to remain is taken from the date such permission is granted ie not from date of marriage. In both cases we have responded to the Citizenship Unit asking that they urgently review the refusals, making the strong submission that as the family member of an EU citizen who has exercised EU free movement and who has been economically active in the State, the applicant enjoyed a right to reside from the date of marriage pursuant to Article 7 of Directive 2004/38EC, (the Directive) the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) (the Regulations). Our argument is that such permission was not contingent or conditional on making any application to the Minister; it was an entitlement derived from EU law. 

We have not had this type of response until now and it remains to be seen how the Citizenship Unit will deal with such applications going forward. While our legal arguments appear sound, on a practical level these refusals may cause difficulties for applicants and anyone in this position is best advised to ensure they are in a position to make a permanent residency application or an application for retention to keep their permission in date and enable them to maintain their permission beyond the five year EU Family card. 

Rebecca Keatinge

Brophy Solicitors