S.I. No. 548/2015 - European Communities (Free Movement of Persons) Regulations 2015

• (4) A review under this Regulation of a decision under paragraph (1) shall be carried out by an officer of the Minister and who—

• (a) shall be a person other than the person who made the decision, and

• (b) shall be of a grade senior to the grade of the person who made the decision.

• (5) The officer carrying out the review shall have regard to the information contained in the application and may make or cause to be made such enquiries as he or she considers appropriate and may—

• (a) confirm the decision the subject of the review on the same or other grounds having regard to the information contained in the application for the review, or

• (b) set aside the decision and substitute his or her determination for the decision.

• (6) A person who makes an application under paragraph (1) for the review of a removal order may, at the same, make an application for the suspension of the enforcement of the order.

• (7) Where a person makes an application under paragraph (6), the removal of him or her from the State shall, unless the officer carrying out the review is of the view that the removal decision is based on imperative grounds of public security, be suspended until such time as that officer makes his or her decision under paragraph (5).

Co-operation with Member State authorities

26.

• (a) within 3 months of the arrival in the State of a person to whom Regulation 3(1) applies,

• (b) for the purposes of ascertaining whether a person represents a danger to public policy or public security, or

• (c) when considering an application for a residence card,

request the competent authorities in the Member State of origin of the person concerned, or any other Member State, to provide information concerning any previous police record that the person may have.

• (2) Where, for the purposes of the Council Directive, the competent authority of a Member State requests the Minister to provide information concerning any previous police record that a person may have in the State, the Minister shall, within 2 months of the request being made, provide such information.

• (3) Where the competent authority of a Member State requests the Minister to allow the holder of an Irish passport who has been expelled from that Member State on grounds of public policy or public security, to re-enter the State, such person shall be allowed to re-enter the State notwithstanding that his or her passport is no longer valid or that his or her nationality is in dispute.

Cessation of entitlements

27.

• (a) a decision under Regulation 5(3) that a person be treated as a permitted family member;

• (b) a residence card, a permanent residence certificate or permanent residence card;

• (c) a right of residence under Regulation 9(1);

• (d) a right of residence under Regulation 9(2);

• (e) a right of residence under Regulation 9(3);

• (f) a right of residence under Regulation 10(1);

• (g) a right of residence under Regulation 10(2);

• (h) a right of residence under Regulation 12(1).

• (2) Where the Minister suspects, on reasonable grounds, that a right, entitlement or status of being treated as a permitted family member conferred by these Regulations is being claimed, or has been obtained, on the basis of fraud or abuse of rights, he or she shall be entitled to make such enquiries and to obtain such information as is reasonably necessary to investigate the matter.

• (3) Where the Minister proposes to exercise his or her power under paragraph (1), he or she shall—

• (a) give notice in writing to the person concerned, which shall set out the reasons for his proposal and shall give the person concerned a period of 21 days within which to give reasons as to why the right, entitlement or status concerned should not be revoked, and

• (b) consider any submissions made in accordance with subparagraph (a).

• (4) In this Regulation, ‘abuse of rights’ shall include a marriage of convenience or civil partnership of convenience.

Marriages of convenience

28.

• (2) Where the Minister, in taking into account a marriage for the purpose of making a determination of any matter relevant to these Regulations, has reasonable grounds for considering that the marriage is a marriage of convenience, he or she may send a notice to the parties to the marriage requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the marriage is not a marriage of convenience.

• (3) Where a person who is subject to a requirement under paragraph (2) fails to provide the information concerned within the time limit specified in the relevant notice, the Minister may deem the marriage to be a marriage of convenience.

• (4) The Minister may exercise the power under paragraph (2) in respect of a particular marriage whether or not—

• (a) that marriage has previously been taken into account in determining any matter relevant to these Regulations or the Regulations of 2006, or

• (b) that paragraph has previously been invoked in respect of that marriage.

• (5) The Minister shall determine whether a marriage referred to in paragraph (2) is a marriage of convenience having regard to—

• (a) any information furnished under these Regulations, and

• (b) such of the following matters as appear to the Minister to be relevant in the circumstances:

• (i) the nature of the ceremony on the basis of which the parties assert that they are married;

• (ii) whether the parties have been residing together as husband and wife, and, if so, the length of time during which they have so resided;

• (iii) the extent to which the parties have been sharing income and outgoings;

• (iv) the extent to which the parties have been dealing with other organs of the State or organs of any other state as a married couple;

• (v) the nature of the relationship between the parties prior to the marriage;

• (vi) whether the parties are familiar with the other’s personal details;

• (vii) whether the parties speak a language that is understood by both of them;

• (viii) whether a sum of money or other inducement was exchanged in order for the marriage to be contracted (and, if so, whether this represented a dowry given in the case of persons from a country or society where the provision of a dowry on the occasion of marriage is a common practice);

• (ix) whether the parties have a continuing commitment to mutual emotional and financial support;

• (x) the history of each of the parties including any evidence that either of them has previously entered into a marriage of convenience or a civil partnership of convenience;

• (xi) whether any previous conduct of either of the parties indicates that either of them has previously arranged a marriage of convenience or otherwise attempted to circumvent the immigration laws of the State or any other state;

• (xii) the immigration status of the parties in the State or in any other state;

• (xiii) any information provided by an tArd-Chláraitheoir or registrar within the meaning of the Civil Registration Act 2004 ;

• (xiv) any other matters which appear to the Minister to raise reasonable grounds for considering the marriage to be a marriage of convenience.

• (6) For the purposes of these Regulations “marriage of convenience” means a marriage contracted, whether inside or outside the State, for the sole purpose of obtaining an entitlement under—

• (a) the Council Directive or these Regulations,

• (b) any measure adopted by a Member State to transpose the Directive, or

• (c) any law of the State concerning the entry and residence of foreign nationals in the State or the equivalent law of another state.

Civil partnerships of convenience

29.

• (2) Where the Minister, in taking into account a civil partnership for the purpose of making a determination of any matter relevant to these Regulations, has reasonable grounds for considering that the civil partnership is a civil partnership of convenience, he or she may send a notice to the parties to the civil partnership requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the civil partnership is not a civil partnership of convenience.

• (3) Where a person who is subject to a requirement under paragraph (2) fails to provide the information concerned within the time limit specified in the relevant notice, the Minister may deem the civil partnership to be a civil partnership of convenience.

• (4) The Minister may exercise the power under paragraph (2) in respect of a particular civil partnership whether or not—

• (a) that civil partnership has previously been taken into account in determining any matter relevant to these Regulations or the Regulations of 2006, or

• (b) that paragraph has previously been invoked in respect of that civil partnership.

• (5) The Minister shall determine whether a civil partnership referred to in paragraph (2) is a civil partnership of convenience having regard to—

• (a) any information furnished under these Regulations, and

• (b) such of the following matters as appear to the Minister to be relevant in the circumstances:

• (i) the nature of the ceremony on the basis of which the parties assert that they have become civil partners;

• (ii) whether the parties have been residing together as civil partners, and, if so, the length of time during which they have so resided;

• (iii) the extent to which the parties have been sharing income and outgoings;

• (iv) the extent to which the parties have been dealing with other organs of the State or organs of any other state as civil partners;

• (v) the nature of the relationship between the parties prior to becoming civil partners;

• (vi) whether the parties are familiar with the other’s personal details;

• (vii) whether the parties speak a language which is understood by both of them;

• (viii) whether a sum of money or other inducement was exchanged in order for the civil partnership to be contracted (and, if so, whether this represented a dowry given in the case of persons from a country or society where the provision of a dowry on the occasion of a civil partnership is a common practice);

• (ix) whether the parties have a continuing commitment to mutual emotional and financial support;

• (x) the history of each of the parties including any evidence that either of them has previously entered into a civil partnership of convenience or a marriage of convenience;

• (xi) whether any previous conduct of either of the parties indicates that either of them has previously arranged a civil partnership of convenience or otherwise attempted to circumvent the immigration laws of the State or any other state;

• (xii) the immigration status of the parties in the State or in any other state;

• (xiii) any information provided by an tArd-Chláraitheoir or registrar within the meaning of the Civil Registration Act 2004 ;

• (xiv) any other matters which appear to the Minister to raise reasonable grounds for considering the civil partnership to be a civil partnership of convenience.

• (6) For the purposes of these Regulations “civil partnership of convenience” means a civil partnership entered into, whether inside or outside the State, for the sole purpose of obtaining an entitlement under—

• (a) the Council Directive or these Regulations,

• (b) any measure adopted by a Member State to transpose the Directive, or

• (c) any law of the State concerning the entry and residence of foreign nationals in the State or the equivalent law of another state.

Offences

30.

• (a) fails to apply for a residence card in accordance with Regulation 7(1)(b),

• (b) fails to surrender his or her residence card in accordance with Regulation 8(4),

• (c) fails to comply with Regulation 11(2)(a)(i),

• (d) fails to comply with Regulation 11(2)(a)(ii),

• (e) fails to comply with Regulation 11(2)(b),

• (f) fails to surrender his or her permanent residence certificate in accordance with Regulation 14(9),

• (g) fails to apply for a permanent residence card under Regulation 15(1),

• (h) fails to surrender his or her permanent residence card in accordance with Regulation 15(10),

• (i) fails to comply with Regulation 18(3),

• (j) fails to comply with Regulation 19(3),

• (k) fails to comply with a removal order or a notification under Regulation 21(4)(b),

• (l) fails to comply with an exclusion order,

• (m) for the purposes of seeking an entitlement conferred by these Regulations, gives or makes any statement, declaration or information which is to his or her knowledge false or misleading in a material particular,

• (n) for the purpose of seeking an entitlement conferred by these Regulations, destroys or conceals documents with intent to deceive, or

• (o) forges, fraudulently alters, assists in forging or fraudulently altering or procures to be forged or fraudulently altered any document for reward where such documents are used or intended to be used in connection with seeking an entitlement conferred by these Regulations, or

• (p) sells or supplies, or has in his or her possession for the purpose of sale or supply, forged documents, where such documents are used or intended to be used in connection with seeking an entitlement conferred by these Regulations,

shall be guilty of an offence.

• (2) A person who commits an offence under subparagraphs (a), (b), (c), (f), (g) or (h) of paragraph (1) is liable on summary conviction to a class C fine or imprisonment for a term not exceeding 3 months, or both.

• (3) A person who is found guilty of an offence under subparagraph (d) or (e) of paragraph (1) is liable on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months.

• (4) A person who is found guilty of an offence under subparagraph (i), (j), (k) or (l) of paragraph (1) is liable—

• (a) on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months, or both, or

• (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 2 years, or both.

• (5) A person who is found guilty of an offence under subparagraph (m), (n), (o) or (p) of paragraph (1) is liable—

• (a) on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months, or both, or

• (b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years, or both.

Transitional provisions

31.

• (2) Where, immediately before the date on which these Regulations come into operation, a person is residing in the State on the basis that he or she is a permitted family member within the meaning of the Regulations of 2006, that person shall be deemed to be a person in respect of whom the Minister has, in accordance with Regulation 5, decided should be treated as a permitted family member.

• (3) Where, before the date on which these Regulations come into operation, a person produced evidence in accordance with Regulation 5(1) of the Regulations of 2006 and, by that date, the Minister has not established under that Regulation whether the person concerned is a permitted family member—

• (a) that Regulation shall continue to apply for the purpose of establishing whether the person is a permitted family member under the Regulations of 2006, and

• (b) where the person is established to be a permitted family member under Regulation 5(2) of the Regulations of 2006, he or she shall be deemed to be a permitted family member under these Regulations.

• (4) Where, immediately before the date on which these Regulations come into operation, a person is residing in the State under Regulation 6(1) of the Regulations of 2006 and, by that date, the period referred to in that paragraph has not expired, that person shall be deemed to be residing in the State under Regulation 6(1) and the period during which the person resided in the State under Regulation 6(1) of the Regulations of 2006 shall be reckonable in calculating the period referred to in Regulation 6(1).

• (5) Where, immediately before the date on which these Regulations come into operation, a person to whom Regulation 6(3)(a) of the Regulations of 2006 applied was remaining in the State under Regulation 6(2) of those Regulations, the person shall be deemed to be a person with a right to reside under Regulation 6(3)(a)(iv) or 6(3)(b), as the case may be.

• (6) Where, immediately before the date on which these Regulations come into operation, a person was permitted to remain in the State under Regulation 6(3)(b) of the Regulations of 2006, that person shall be deemed to be a person whom the Minister has decided, in accordance with Regulation 6(6), may remain in the State.

• (7) Where, immediately before the date on which these Regulations come into operation, a person is present in the State as a qualifying family member or a permitted family member, within the meaning of the Regulations of 2006, then, for the purposes of Regulation 7(1), "relevant date" shall be construed as meaning the date on which that person entered the State as, or became, a qualifying family member or a permitted family member, as the case may be, under the Regulations of 2006.

• (8) Where, before the date on which these Regulations come into operation, a person made an application in accordance with Regulation 7(1)(a) of the Regulations of 2006 and, by that date, the application had not been determined by the Minister, that application shall be deemed to be an application made under Regulation 7 and these Regulations shall apply accordingly.

• (9) A residence card issued under Regulation 7(2) of the Regulations of 2006 which, immediately before the date on which these Regulations come into operation, remains valid, shall, for the remaining period of its validity, be deemed to be a residence card issued under these Regulations and these Regulations shall apply accordingly.

• (10) A person who, immediately before the date on which these Regulations come into operation, has a right of residence under Regulation 9(1) of the Regulations of 2006 shall be deemed to have a right of residence under Regulation 9(1) and these Regulations shall apply accordingly.

• (11) A person who, immediately before the date on which these Regulations come into operation, has a right of residence under Regulation 9(2) of the Regulations of 2006 shall be deemed to have a right of residence under Regulation 9(2) and these Regulations shall apply accordingly.

• (12) A person who, immediately before the date on which these Regulations come into operation, has a right of residence under Regulation 10(1) of the Regulations of 2006, shall be deemed to have a right of residence in accordance with Regulation 10(1) and these Regulations shall apply accordingly.

• (13) A person who, immediately before the date on which these Regulations come into operation, has a right of residence under Regulation 10(2) of the Regulations of 2006, shall be deemed to have a right of residence in accordance with Regulation 10(2) and these Regulations shall apply accordingly.

• (14) A person who, immediately before the date on which these Regulations come into operation, has a right to remain permanently in the State by virtue of Regulation 12(1) of the Regulations of 2006, shall be deemed to be a person to whom Regulation 12(1) applies and these Regulations shall apply accordingly.

• (15) Where, immediately before the date on which these Regulations come into operation, a person is residing in the State in conformity with the Regulations of 2006, and by that date the period referred to in Regulation 12(1) of those Regulations has not expired, the period during which the person resided in the State in conformity with the Regulations of 2006 shall be reckonable in calculating the period referred to in Regulation 12(1)(a).

• (16) Where, immediately before the date on which these Regulations come into operation, a person is residing in the State in accordance with Regulation 13(4)(a) of the Regulations of 2006, and by that date the period referred to in that Regulation has not expired, the period during which the person resided in the State in conformity with Regulation 13(4)(a) of the Regulations of 2006 shall be reckonable in calculating the period referred to in Regulation 13(3).

• (17) Where, immediately before the date on which these Regulations come into operation, a person is residing in the State in accordance with Regulation 13(1)(b) or Regulation 13(7) of the Regulations of 2006, and by that date the period referred to in that Regulation had not expired, the period of time during which the person resided in the State in conformity with Regulation 13(1)(b) or Regulation 13(7) of the Regulations of 2006 shall be reckonable in calculating the period referred to in Regulation 13(1)(b) or Regulation 13(7)(a), as the case may be.

• (18) Where, immediately before the date on which these Regulations come into operation, a person is residing in the State in accordance with Regulation 14 of the Regulations of 2006, and by that date the period referred to in that Regulation has not expired, the period of time during which the person resided in the State in conformity with Regulation 14 of the Regulations of 2006 shall be reckonable in calculating the period referred to in Regulation 12(3)(b) or Regulation 12(4)(b), as the case may be.

• (19) Where, before the date on which these Regulations come into operation, a person made an application under Regulation 13(1) or Regulation 15(1) of the Regulations of 2006 and, by that date, the application had not been determined by the Minister, that application shall be deemed to be an application under Regulation 14(1) and these Regulations shall apply accordingly.

• (20) Where, before the date on which these Regulations come into operation, a person made an application under Regulation 16(1) of the Regulations of 2006 and, by that date, the application had not been determined by the Minister, that application shall be deemed to be an application under Regulation 15(1) and these Regulations shall apply accordingly.

• (21) A permanent residence certificate issued under Regulation 15(3) of the Regulations of 2006 which, immediately before the date on which these Regulations come into operation, remains valid, shall be deemed to be a permanent residence certificate issued under Regulation 14(3) and these Regulations shall apply accordingly.

• (22) A permanent residence card issued under Regulation 16(3) of the Regulations of 2006 which, immediately before the date on which these Regulations come into operation, remains valid, shall, for the remaining period of its validity, be deemed to be a permanent residence card issued under Regulation 15(3) and these Regulations shall apply accordingly.

• (23) Where, before the date on which these Regulations come into operation, the Minister made an order under Regulation 20(1)(a) of the Regulations of 2006, that order shall be deemed to be a removal order under these Regulations and these Regulations shall apply accordingly.

• (24) Where, before the date on which these Regulations come into operation, the Minister issued a notice under Regulation 19(1) of the Regulations of 2006, that notice shall, in the case of a notice issued on the grounds of public policy or public security, be deemed to be a notice issued under Regulation 18(2), and these Regulations shall apply accordingly.

• (25) Where, before the date on which these Regulations come into operation, the Minister restricted the freedom of movement of a person under Regulation 22(1) of the Regulations of 2006 and the restriction still applies after that date, such restriction shall be deemed to be a notice issued under Regulation 19(2) and these Regulations shall apply accordingly.

• (26) Where, before the date on which these Regulations come into operation, the Minister issued a notification under Regulation 20(2) of the Regulations of 2006 and, by that date, the Minister had not determined whether to make a removal order under that regulation in respect of that person—

• (a) the notification shall be deemed to be a notification made under Regulation 21(1) and these Regulations shall apply accordingly, and

• (b) the following shall be deemed to be representations made under Regulation 21(2)(b):

• (i) representations made by the person in accordance with Regulation 20(2) of the Regulations of 2006;

• (ii) where the 15 day period specified in the notification has not, by that date, expired, representations made by the person within that period.

• (27) Where the Minister has notified a person in accordance with Regulation 20(3)(b)(ii) of the Regulations of 2006, the notice concerned shall be deemed to be a notification under Regulation 21(4)(b) and these Regulations shall apply accordingly.

• (28) Where, before the date on which these Regulations come into operation, a person has sought a review under Regulation 21(1) of the Regulations of 2006 and, by that date, the review has not been determined, Regulation 21 of the Regulations of 2006 shall continue to apply for the purposes of the determination of the review.

• (29) Where, immediately before the date on which these Regulations come into operation, a person was detained in a place of detention pursuant to Regulation 20(4)(a) of the Regulations of 2006, then his or her continued detention in that place is authorised by Regulation 22 and these Regulations shall apply accordingly, and any period of detention under the Regulations of 2006 shall be included in reckoning a period for the purpose of these Regulations.

Revocation

32.

SCHEDULE 1 Regulations 4(1) and (2), 5(7) and 19

SCHEDULE 2 Regulation 7(3) — particulars to be contained in application for residence card by family member who is not a national of a Member State

Applicant’s particulars and relevant documentary evidence

• (a) documentary evidence from the relevant authority in the country from which he or she has come certifying that he or she is a dependant of the Union citizen or a member of the household of the Union citizen, or

• (b) proof that on the basis of serious health grounds strictly requires the personal care of the Union citizen

Particulars of Union citizen of whom the applicant is a family member/dependant.

SCHEDULE 3 Regulation 7(5) — particulars to be contained in residence card

The residence card shall contain the following particulars—

SCHEDULE 4 Particulars to be included where a person makes representations in accordance with Regulation 8(3), 14(5), 15(5), 20(8), 23(4), 23(8) or 23(10)

SCHEDULE 5 Regulation 14(2) — particulars to be contained in application for permanent residence certificate

Applicant’s particulars

SCHEDULE 6 Regulation 14(3) — form of permanent residence certificate

Departmental letter to issue to Union citizen stating as follows.

European Communities (Free Movement of Persons) Regulations 2015

To: Name and address of applicant

Date of birth

Nationality

I am directed by the Minister for Justice and Equality and refer to Regulation 14(3) of the European Communities (Free Movement of Persons) Regulations 2015 regarding the issuance of a permanent residence certificate to a European Union citizen who is entitled to remain permanently in the State;

AND WHEREAS you, __ bearing the __ Passport Number __ or National Identity Card Number __ are a person in respect of whom a permanent residence certificate may be issued under the said Regulation 14(3);

I hereby certify that you are entitled to remain permanently in the State.

[Signature of officer of Minister]

[Name and rank of officer of Minister]

On behalf of the Minister for Justice and Equality

[date of signature]

Permanent Residence Certificate Number: __

Note: This certificate is not, and may not be used as, a document establishing the nationality or identity of the holder.

SCHEDULE 7 Regulation 15(2) — particulars to be contained in application for permanent residence card

Applicant’s details

Particulars of Union citizen of whom the applicant is a family member or dependant

SCHEDULE 8 Regulation 15(3) — particulars to be contained in permanent residence card

The permanent residence card shall contain the following particulars and may be issued in the form of a letter from the Minister—

SCHEDULE 9 Regulation 21(2) — representations by person to Minister as to why removal order should not be made

SCHEDULE 10 Regulation 21(8) Form of removal order

European Communities (Free Movement of Persons) Regulations 2015

To: [name and address of applicant]

WHEREAS it is provided by Regulation 20 of the European Communities (Free Movement of Persons) Regulations 2015 that, subject to those Regulations, the Minister for Justice and Equality may by order require a person to whom the Regulations apply to leave the State within the time specified in the order;

AND WHEREAS you are a person in respect of whom a removal order may be made under the said Regulation 20;

NOW I, __ on behalf of the Minister for Justice and Equality, in exercise of the powers conferred by the said Regulation 20, hereby require you to leave the State within the period ending on the __.

[Signature of officer of Minister]

[Name and rank of officer of Minister]

On behalf of the Minister for Justice and Equality

[date of signature]

SCHEDULE 11 Regulation 22(1) Places of Detention

A Garda Síochána station

Castlerea Prison

Cloverhill Prison

Cork Prison

Limerick Prison

The Midlands Prison

Mountjoy Prison

Wheatfield Place of Detention

SCHEDULE 12 Regulation 23(13) Form of exclusion order

European Communities (Free Movement of Persons) Regulations 2015

To: [name and address of applicant]

WHEREAS it is provided by Regulation 23 of the European Communities (Free Movement of Persons) Regulations 2015 that, subject to those Regulations, the Minister for Justice and Equality may by order require a person to whom the Regulations apply not to enter the State for the period specified in the order;

AND WHEREAS you are a person in respect of whom an exclusion order may be made under the said Regulation 23;

NOW I, __ on behalf of the Minister for Justice and Equality, in exercise of the powers conferred by the said Regulation 23, hereby impose an exclusion period on you whereby you shall not re-enter or seek to re-enter the State up to __.

[Signature of officer of Minister]

[Name and rank of officer of Minister]

On behalf of the Minister for Justice and Equality

[date of signature]

GIVEN under my Official Seal,

1 December 2015.

FRANCES FITZGERALD,

Minister for Justice and Equality.

Footnotes