European Communities (Free Movement of Persons) (No. 2) Regulations

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  STATUTORY INSTRUMENT S.I. No. 656 of 2006 European Communities (Free Movement of Persons) (No. 2) Regulations 2006  Published by the Stationery Office, Dublin  ____________________ To be purchased directly from the Government Publications Sales Office, Sun Alliance House, Molesworth Street, Dublin 2, or by mail order from Government Publications, Postal Trade Section, 51 St Stephen’s Green, Dublin 2 (Tel: 01 647 6834/35/36/37; Fax: 01 647 6843) or through any bookseller.  ____________________ Price: €3.05 Prn. A6/2187   2 S.I. No. 656 of 2006 European Communities (Free Movement of Persons) ( No. 2) Regulations 2006 I, Michael McDowell, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the  purposes of giving effect to Directive 2004/38/EC 1  of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, hereby make the following Regulations: Citation and Commencement 1. These Regulations may be cited as the European Communities (Free Movement of Persons) ( No. 2) Regulations 2006. 2. These Regulations come into operation on 1 January 2007. Interpretation 2. (1) In these Regulations - “Council Directive” means Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; “EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993 and as amended from time to time; “exclusion order” means an order under Regulation 23(1); “family member” includes a qualifying family member and a permitted family member; “Irish visa” has the meaning assigned to it by the Immigration Act 2003 (No. 26 of 2003); “Member State” means a Member State of the European Union other than the State; “Member State of the EEA” means a state which is a contracting state to the EEA Agreement; “Minister” means the Minister for Justice, Equality and Law Reform; “non-national” has the meaning assigned to it by the Immigration Act 1999 (No. 22 of 1999); “permanent residence card” means a permanent residence card issued under Regulation 16(3); “permanent residence certificate” means a permanent residence certificate issued under Regulation 15(3); “permitted family member”, in relation to a Union citizen, means any family member, irrespective of his or her nationality, who is not a qualifying family member of the Union citizen, and who, in his or her country of srcin, habitual residence or previous residence - (a) is a dependant of the Union citizen, (b) is a member of the household of the Union citizen, (c) on the basis of serious health grounds strictly requires the personal care of the Union citizen, or (d) is the partner with whom the Union citizen has a durable relationship, duly attested; “qualifying family member”, in relation to a Union citizen, means - (a) the Union citizen’s spouse, (b) a direct descendant of the Union citizen who is - 1  OJL 229 of 29.6.2004, p.35   3 (i) under the age of 21, or (ii) a dependant of the Union citizen, (c) a direct descendant of the spouse of the Union citizen who is - (i) under the age of 21, or (ii) a dependant of the spouse of the Union citizen, (d) a dependent direct relative of the Union citizen in the ascending line, or (e) a dependent direct relative of the spouse of the Union citizen in the ascending line; “registration district” means the Dublin Metropolitan Area or a Garda Síochána District situated outside that Area; “registration officer” means the officer in charge of the Garda National Immigration Bureau in the Dublin Metropolitan Area or the Superintendent of the Garda Síochána in a Garda Síochána District outside that Area; “removal order” means an order under Regulation 20(1)(a); “residence card” means a residence card issued under Regulation 7(2); “spouse” does not include a party to a marriage of convenience; “Union citizen” means any person having the nationality of a Member State. (2) A word or expression that is used in these Regulations and is also used in the Council Directive shall have in these Regulations the same meaning as it has in the Council Directive unless the contrary intention appears. (3) For the purposes of these Regulations, a person shall be regarded as not having sufficient resources to support himself or herself and his or her dependants where he or she would qualify for assistance under Part 3 of the Social Welfare Consolidation Act 2005 (No. 26 of 2005) if a claim were made by or on behalf of the person. Application and transitional provisions 3. (1) These Regulations shall apply to - (a) Union citizens, (b) subject to paragraph (2), qualifying family members of Union citizens who are not themselves Union citizens, and (c) subject to paragraph (2), permitted family members of Union citizens. (2) These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is - (a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member, or (b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State. (3) The European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977) and the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 (S.I. No. 57 of 1997) shall apply to citizens of Member States of the EEA other than Union citizens. (4) (a) A person lawfully resident in the State in accordance with the provisions of the European Communities (Aliens) Regulations 1977, the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 or the European Communities (Free Movement of Persons) Regulations 2006 shall be deemed to be lawfully resident in the State for the purposes of these Regulations.   4 (b) Nothing in these Regulations shall affect the validity of a residence permit or residence document issued under the European Communities (Aliens) Regulations 1977, the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997, or a residence card, permanent residence certificate or card issued under the European Communities (Free Movement of Persons) Regulations 2006. Permission for Union citizens and qualifying family members to enter the State 4. (1) A Union citizen who is in possession of a valid national identity card or passport as evidence of his or her nationality and identity may not be refused permission to enter the State unless - (a) he or she is suffering from a disease specified in Schedule 1, or (b) his or her personal conduct has been such that it would be contrary to public policy or would endanger public security to grant him or her permission to enter the State. (2) A qualifying family member of a Union citizen who is not a national of a Member State and who is in possession of a valid passport as evidence of his or her nationality and identity may not be refused permission to enter the State unless - (a) he or she is suffering from a disease specified in Schedule 1, or (b) his or her personal conduct has been such that it would be contrary to public policy or would endanger public security to grant him or her permission to enter the State. (3) (a) A qualifying family member, who is a member of a class of non-nationals not specified in an order made under section 17 of the Immigration Act 2004 (No. 1 of 2004) as not requiring an Irish visa, shall be in possession of a valid Irish visa as a condition to being granted  permission to enter the State. (b) The Minister shall, on the basis of an accelerated process, consider an application for an Irish visa from a qualifying family member referred to in subparagraph (a) as soon as possible and if the Minister decides to issue an Irish visa that visa shall be issued free of charge. (4) An immigration officer shall not, at the point of entry, place a stamp in the passport of a qualifying family member who presents to the officer a valid residence card. (5) (a) Where a Union citizen, or a family member who is not a national of a Member State, does not have a valid national identity card or passport or, if required, the necessary Irish visa, the immigration officer may, subject to subparagraph (b), refuse permission to enter the State to that person. (b) Before refusing permission to enter the State under subparagraph (a), the immigration officer shall give the person concerned every reasonable opportunity to - (i) obtain the necessary documents, (ii) present the necessary documents to the immigration officer within a reasonable period of time, or (iii) corroborate or prove by other means that he or she is entitled to enter the State in accordance with these Regulations. Permission for permitted family members of Union citizens to enter the State 5. (1) A person who wishes to enter the State on the basis that he or she is a permitted family member of a Union citizen may be required to produce to the Minister - (a) (i) where the person is a Union citizen, a valid passport or national identity card, or (ii) where the person is not a national of a Member State, a valid passport, (b) documentary evidence from the relevant authority in the country of srcin or country from which he or she is arriving certifying that he or she is a dependant, or a member of the household, of the Union citizen,
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