S.I. No. 656/2006 - European Communities (Free Movement of Persons) (No. 2) Regulations 2006

1. Name and address in Ireland

2. Immigration reference number

3. PPS Number

4. Nationality

5. Name, Date of Birth, Relationship of family members residing with requester in Ireland

6. Details of legal representation, if any

7. Statement of the grounds on which the requester seeks the review of the decision made or the Removal Order (indicating where, in the view of the requester, the deciding officer erred in fact and/or in law)

8. Any additional statements which the requester wishes to be considered

9. Additional documentation which the requester wishes to be considered

GIVEN under my Official Seal,

18 December 2006

MICHAEL McDOWELL

Minister for Justice, Equality and Law Reform.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation).

This Order was made for the purpose of giving effect in Irish law to the Directive on the rights of citizens of the Union and their family members to move and reside feely within the territory of the Member States (Directive 2004/38/EC). It replaces the European Communities (Free Movement of Persons) Regulations 2006 (

S.I. No. 226 of 2006

) consequent upon the enlargement of the European Union on 1 January 2007.

1

OJL 229 of 29.6.2004, p.35

10. Extent of the person's links with his or her country of origin.

SCHEDULE 10

Regulation

20(4)(a)

Places of Detention

A Garda Síochána station

Castlerea Prison

Cloverhill Prison

Cork Prison

Limerick Prison

The Midlands Prison

Mountjoy Prison

Saint Patrick's Institution, Dublin

The Training Unit, Glengariff Parade, Dublin

Wheatfield Prison, Dublin.

SCHEDULE 11

Regulation

21(2)

Particulars to be confirmed in Request for Review of Decision

11. Name of Union citizen

12. Address of Union citizen in Ireland

13. Date and place of birth of Union citizen

14. Nationality of Union citizen

15. Number, date and place of issue of Union citizen's passport/national identity card (original of document to be provided)

16. Occupation of Union citizen in Ireland (copy of Employment Permit, if applicable)

17. Immigration Reference Number, if any, PPS Number of Union citizen in Ireland

18. Details of relationship between applicant and Union citizen

SCHEDULE 7

Regulations

16(3)

Particulars to be contained in permanent residence card of a family member of a union citizen who is not a national of a member State

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

19. Date on which Union citizen first entered Ireland.

SCHEDULE 3

Regulation

7(2)

Particulars to be contained in Residence Card of Family Member of Union Citizen who is not a national of a Member State

The residence card shall contain the following particulars -

20. (1) (a) Subject to paragraph (6), the Minister may by order require a person to whom these Regulations apply to leave the State within the time specified in the order where-

(i) the person has been refused a residence card or a permanent residence certificate or card,

(ii) the person refuses to comply with a requirement under Regulation 19 or 22,

(iii) the person is no longer entitled to be in the State in accordance with the provisions of these Regulations, or

(iv) in the opinion of the Minister, the conduct or activity of the person is such that it would be contrary to public policy or it would endanger public security or public health to permit the person to remain in the State.

(b) The time specified in a removal order shall, unless the Minister certifies that the matter is urgent, be not be less than 10 working days in a case where the person concerned has not been issued with a residence card, or less than one month in any other case.

(c) The Minister may impose an exclusion period on the person concerned in a removal order and that person shall not re-enter or seek to re-enter the State during the validity of that period.

(d) Without prejudice to paragraph (1)(a)(iv), the Minister shall not, except on grounds of public order, public security or public health, make a removal order in respect of a person to whom these Regulations apply solely on the basis that the person concerned has served a custodial sentence.

(e) A removal order made on grounds referred to in subparagraph (d) which has not been enforced after the expiry of more than 2 years from the date it was made shall not be enforced unless the Minister is satisfied that the circumstances giving rise to the making of the order still exist.

(f) A removal order shall be in the form set out in Schedule 8.

(2) (a) Where the Minister proposes to make a removal order he or she shall notify the person concerned in writing of his or her proposal and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.

(b) A notification under this paragraph shall contain -

(i) unless the Minister certifies that it would endanger the security of the State to make them known, the reasons giving rise to the proposal referred to in subparagraph (a),

(ii) a statement that the person concerned may make representations as set out in Schedule 9 to the Minister within 15 working days of the sending to him or her of the notification, and

(iii) if the Minister proposes to impose an exclusion period on the person concerned in the removal order, the proposed duration of the exclusion period.

(3) (a) In determining whether to make a removal order and whether to impose an exclusion period in respect of a person the Minister shall take account of -

(i) the age of the person,

(ii) the duration of residence in the State of the person,

(iii) the family and economic circumstances of the person,

(iv) the nature of the person's social and cultural integration with the State, if any,

(v) the state of health of the person, and

(vi) the extent of the person's links with his or her country of origin.

(b) Where the Minister decides that a removal order should be made, he or she shall -

(i) make the removal order, and

(ii) notify the person in writing, where necessary and possible in a language that the person understands, of his or her decision and, unless the Minister certifies that it would endanger the security of the State to make them known, of the reasons for the decision.

(c) A notice under subparagraph (b)(ii) may require the person the subject of the removal order to do any one or more of the following for the purpose of ensuring his or her removal from the State -

(i) present himself or herself to such member of the Garda Síochána or immigration officer at such date, time and place as may be specified in the notice,

(ii) produce any travel document, passport, travel ticket or other document in his or her possession required for the purpose of such removal to such member of the Garda Síochána or immigration officer at such date, time and place as may be specified in the notice,

(iii) co-operate in any way necessary to enable a member of the Garda Síochána or immigration officer to obtain a travel document, passport, travel ticket or other document required for the purpose of such removal,

(iv) reside or remain in a particular district or place in the State pending removal from the State,

(v) report to a specified Garda Síochána station or immigration officer at specified intervals pending removal from the State,

(vi) notify such member of the Garda Síochána or immigration officer as may be specified in the notice as soon as possible of any change of address.

(d) Where a notice under subparagraph (b)(ii) contains a requirement to do an act specified in subparagraph (c), a member of the Garda Síochána or immigration officer may, if he or she considers it necessary for the purpose of ensuring the removal of the person concerned from the State, require the person in writing to do any one or more of the acts specified in subparagraph (c) and any such further requirement shall have effect as if it were a requirement in a notice under subparagraph (b)(ii).

(e) A further requirement under subparagraph (d) shall, where necessary and possible, be given to the person concerned in a language that he or she understands.

(4) (a) A person to whom a notice under paragraph (3)(b)(ii) has been issued may without further notice be arrested and detained under warrant of an immigration officer or member of the Garda Síochána in any of the places listed in Schedule 10 in the custody of the officer or member of the Garda Síochána for the time being in charge of that place for the purpose of ensuring his or her departure from the State in accordance with the removal order concerned.

(b) For the purposes of subparagraph (a), an arresting officer shall inform the Member in Charge in the case of a station, or the Governor, in any other case, of the arrest and direct that the person be detained until further notice.

(c) A person arrested and detained under subparagraph (a) may be detained only until such time (being as soon as is practicable) as he or she is removed from the State in compliance with the removal order concerned.

(d) A person arrested and detained under subparagraph (a) may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State.

(e) The master of any ship and the person in charge of any railway train, road vehicle or aircraft bound for any place outside the State shall, if so required by an immigration officer or a member of the Garda Síochána, receive a person in respect of whom a removal order has been made and his or her dependants, if any, on board such ship, railway train, road vehicle or aircraft and afford him or her and his or her dependants proper accommodation and maintenance during the journey.

(5) (a) Paragraph (4) shall not apply to a person who is under the age of 18 years.

(b) If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, paragraph (4) shall apply as if he or she had attained the age of 18 years.

(c) Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in

loco parentis

or any other person) and such person is detained pursuant to this Regulation, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the Health Service Executive of the detention and of the circumstances thereof.

(6) (a) A removal order may not, except on serious grounds of public policy, or public security, be made in respect of a person to whom these Regulations apply, where the person has an entitlement to reside permanently in the State.

(b) A removal order may not, except on imperative grounds of public security, be made in respect of a Union citizen who -

(i) has resided in the State for the previous 10 years, or

(ii) subject to subparagraph (c), is a minor.

(c) Subparagraph (b)(ii) shall not apply where it is in the best interests of the minor concerned that he or she should be removed from the State.

(7) An application by or on behalf of a person to whom these Regulations apply for leave to apply for judicial review against a removal order shall not suspend the removal of the person concerned where -

(a) the removal decision is based on a previous judicial decision,

(b) the person concerned has had previous access to judicial review, or

(c) the removal decision is based on imperative grounds of public security.

(8) The Minister may, of his or her own volition or on application made by the person concerned after he or she has complied with a removal order, by order amend or revoke such an order.

Review of decisions

21. (1) A person to whom these Regulations apply may seek a review of any decision concerning the person's entitlement to be allowed to enter or reside in the State.

(2) A request for review under paragraph (1) shall contain the particulars set out in Schedule 11.

(3) A review under this Regulation of a decision under paragraph (1) shall be carried out by an officer of the Minister who -

(a) is not the person who made the decision,

and

(b) is of a grade senior to the grade of the person who made the decision.

(4) The officer determining the review may -

(a) confirm the decision the subject of the review on the same or other grounds having regard to the information provided for the review or substitute his or her decision for the decision the subject of the review, or

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

Public health

22. (1) Subject to paragraph (2), the Minister may restrict the freedom of movement or make a removal order in respect of a person to whom these Regulations apply where he or she is satisfied that the person is suffering from a disease specified in Schedule 1.

(2) Paragraph (1) shall not apply where the person concerned contracted the disease after the expiration of 3 months from the date of arrival of the person in the State.

(3) Where in the Minister's opinion in any particular case it is desirable to do so, he or she may require a person to whom these Regulations apply to undergo, free of charge, a medical examination by a registered medical practitioner for the purpose of ascertaining whether or not the person is suffering from any disease specified in Schedule 1.

Exclusion orders

23. (1) The Minister may, if he or she considers it necessary in the interest of public security or public policy, by order exclude a person to whom these Regulations apply from the State.

(2) (a) A person the subject of an exclusion order may apply to the Minister to have the exclusion order revoked.

(b) An application under subparagraph (a) shall be made not earlier than 3 years from the date of enforcement of the exclusion order and shall set out the reasons why the order should be revoked and demonstrate that there has been a material change in the circumstances which justified the making of the order.

(3) The Minister shall determine an application under paragraph (2) as soon as is practicable and, in any event, not later than 6 months after the date of receipt of the application.

(4) The Minister may by order amend or revoke an exclusion order.

(5) (a) Subject to subparagraph (b), the Minister may allow a person who is the subject of an exclusion order to re-enter the State for the purposes of attending a hearing connected with a review of a decision under these Regulations.

(b) Subparagraph (a) shall not apply where, in the opinion of the Minister -

(i) the person's presence in the State would be contrary to public security or public policy, or

(ii) the review concerns a denial of entry to the State.

(c) Nothing in these Regulations shall operate to confer an entitlement on a person who is the subject of an exclusion order to enter the State while the Minister is considering an application under paragraph (2).

Cessation of entitlements

24. (1) Where it is established that a person to whom these Regulations apply has acquired any rights or entitlements under these Regulations by fraudulent means then that person shall immediately cease to enjoy such rights or entitlements.

(2) In these Regulations, “fraudulent means” includes marriages of convenience.

Offences

25. A person who -

(a) being a person to whom these Regulations apply, fails to comply with any requirement of these Regulations or under these Regulations, or

(b) asserts an entitlement to any rights under these Regulations on the basis of information which he or she knows to be false or misleading in a material particular,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €5,000 or to a term of imprisonment not exceeding 12 months, or both.

Notices, etc.

26. (1) Where a notice is required or authorised by or under these Regulations to be served on or given to a person, it shall be addressed to him or her and shall be served on or given to him or her -

(a) by delivering it to him or her, or

(b) by sending it by post in a prepaid registered letter, or by any other form of recorded delivery service prescribed by the Minister, addressed to him or her at the address most recently furnished by him or her or in the case of his or her legal representative, if any, at his or her business address, or in a case in which an address for service has been furnished, at that address.

(2) Where a notice under these Regulations has been sent to a person in accordance with paragraph (1)(b), the notice shall be deemed to have been duly served on or given to the person on the third day after the day on which it was so sent.

Revocation.

27. The European Communities (Free Movement of Persons) Regulations 2006 (

S.I. No. 226 of 2006

) are revoked.

SCHEDULE 1

Regulations

4(1)(a)

and

(2)(a)

,

5(4)(b)

and

22(1)

Diseases referred to in regulations

4(1)(a), (2)(a), 5(4)(b)

and

22(1)

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