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S.I. No. 548/2015 - European Communities (Free Movement of Persons) Regulations 2015.
Table of Provisions (33)
Statutory Text (33 Articles)
1. Name and address in the State of person
2. Nationality of person
3. Immigration reference number (if any) of person
4. PPS number of person
5. Date of birth of person
6. Duration of residence in the State of person
7. Family and economic circumstances of person
8. Nature of persons social and cultural integration in the State
9. State of health of person
10. Extent of persons links with his or her country of origin
11. Any additional statements which person wishes to be considered
12. Additional documentation which person wishes to be considered
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.
1Directive 2004/38/EC 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
13. Date and place of birth of Union citizen
14. Nationality of Union citizen
15. Number, date and place of issue of Union citizens passport (original of document to be provided)
16. Occupation of Union citizen in the State
17. Immigration Reference Number, if any, PPS number of Union citizen
18. Details of relationship between applicant and Union citizen
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—
19. (1) The Minister, where he or she is satisfied that a person to whom Regulation 3(1) applies is suffering from a disease referred to in Schedule 1, may issue to the person—
(
a
) a notice under paragraph (2), or
(
b
) within 3 months of the persons arrival in the State, a removal order.
(2) A notice under this paragraph shall be in writing and shall be accompanied by reasons for the issue of the notice and shall require the person to do one or both of the following
(
a
) reside or remain in particular districts or places in the State;
(
b
) report at specified intervals to an immigration officer, member of the Garda Síochána, the Health Service Executive, or such other authorities in the State specified in the notice.
(3) A person who is the subject of a notice under paragraph (2) shall comply with the requirements specified in the notice.
(4) Where in the Minister’s opinion in any particular case there are serious indications that it is necessary, he or she may require a person to whom Regulation 3(1) applies, within three months of the date of arrival of the person in the State, 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 referred to in Schedule 1.
(5) The Minister shall revoke a notice issued under paragraph (2) where he or she is satisfied that the person concerned no longer suffers from a disease referred to in Schedule 1.
Removal orders — general
20. (1) The Minister, in accordance with this Regulation and Regulation 21, may make an order (“removal order”) in respect of a person to whom Regulation 3(1) applies where, in the opinion of the Minister—
(
a
) the person is not or is no longer entitled to be in the State in accordance with these Regulations, or
(
b
) the person represents a danger for public policy or public security by reason of the fact that his or her personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
(2) A removal order shall require the person in respect of whom is it made to leave the State within the period specified in the order.
(3) The period referred to in paragraph (2) shall, unless the Minister certifies that the matter is urgent, be not less than one month.
(4) Paragraph (1)(
a
) does not apply to a Union citizen—
(
a
) who is in employment or in self-employment, or
(
b
) who can satisfy the Minister that he or she continues to seek employment and has a realistic prospect of being engaged in employment or self-employment.
(5) A removal order may not, except on serious grounds of public policy, or public security, be made in respect of a person who has an entitlement to reside permanently in the State.
(6)(
a
) 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 (
b
), is a child under the age of 18 years.
(
b
) Subparagraph (
a
)(ii) shall not apply where it is in the best interests of the child concerned that he or she be removed from the State.
(7) A previous criminal conviction shall not in itself constitute a ground for the making of a removal order.
(8) A removal order made on the grounds referred to in paragraph (1)(
b
) that has not, after the expiry of more than 2 years from the date on which it was made, been enforced shall not be enforced unless the Minister—
(
a
) carries out an assessment to ascertain whether there has been any material change in the circumstances which gave rise to the making of the removal order,
(
b
) having carried out the assessment referred to in subparagraph (
a
), is of the opinion that the person represents a danger for public policy or public security by reason of the fact that his or her personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society,
(
c
) notifies the person concerned that he or she may make representations in writing to the Minister, which shall include the particulars specified in Schedule 4, within 15 working days of the date of issue of the notification, and
(
d
) considers any representations made by the person concerned under subparagraph (
c
).
(9) Subject to paragraph (10), an application by a person for leave to apply for judicial review of a removal order which is accompanied by an application for an interim order to suspend enforcement of the removal order shall suspend the removal of the person concerned until such time as the decision on the application for the interim order has been taken.
(10) Paragraph (9) does not apply where the removal order is based on imperative grounds of public security.
(11) The making of a removal order in respect of a person shall, for the purpose of these Regulations, entail a break in the continuity of his or her residence in the State under these Regulations.
Removal orders — procedural requirements
21. (1) Where the Minister proposes to make a removal order, he or she shall notify the person concerned in writing of the proposal and shall provide to the person a copy of the proposed order, in a language that the person may reasonably be expected to understand.
(2) A notification under paragraph (1) shall contain—
(
a
) 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 paragraph (1), and
(
b
) a statement that the person concerned may make representations in writing to the Minister in the form provided for in Schedule 9 within 15 working days of the date of issue of the notification.
(3) In determining whether to make a removal order in respect of a person the Minister shall consider any representations made by the person in accordance with paragraph (2)(
b
) and—
(
a
) the age of the person,
(
b
) the duration of residence in the State of the person,
(
c
) the family and economic circumstances of the person,
(
d
) the nature of the person’s social and cultural integration in the State, if any,
(
e
) the state of health of the person,
(
f
) the extent of the person’s links with his or her country of origin, and
(
g
) any other circumstances or matters that he may consider relevant.
(4)(
a
) Where the Minister decides not to make a removal order, he or she shall shall notify the person of that fact.
(
b
) Where the Minister decides to make a removal order, he or she shall, in writing and in a language that the person may reasonably be expected to understand, notify the person concerned of that fact and the notification shall, unless the Minister certifies that it would endanger the security of the State to make them known, contain the reasons for the making of the order.
(5) A notification under paragraph (4)(
b
) shall be accompanied by the removal order and the person shall comply with the order and the notification.
(6) A notification under paragraph (4)(
b
) 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
(
a
) 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;
(
b
) 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;
(
c
) 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;
(
d
) reside or remain in a particular district or place in the State pending removal from the State;
(
e
) report to a specified Garda Síochána station or immigration officer at specified intervals pending removal from the State;
(
f
) 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.
(7) A member of the Garda Síochána or immigration officer may, regardless of whether a notification under paragraph (4)(
b
) contains a requirement to do an act specified in paragraph (6), 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 paragraph (6) and any such requirement, which shall be in a language that the person may reasonably be expected to understand, shall have effect as if it were a requirement in a notification under paragraph (4)(
b
).
(8) A removal order shall be in the form set out in Schedule 10 and shall be accompanied by such information as is necessary to inform the person concerned of the administrative and judicial authorities with whom he or she may seek a review of the order.
(9) A notification under paragraph (1) may, where it is proposed to make a removal order pursuant to Regulation 20(1)(
b
), be accompanied by a notification under Regulation 23(3).
Arrest and detention for purposes of removal from the State
22. (1) Subject to paragraph (2), a person (other than a person who is under the age of 18 years) in respect of whom a removal order has been made may, for the purpose of ensuring his or her departure from the State in accordance with the removal order and 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 11 in the custody of the officer or member of the Garda Síochána for the time being in charge of that place.
(2) An immigration officer or member of the Garda Síochána shall exercise his or her power under paragraph (1) only—
(
a
) where the person who is the subject of a removal order has failed to leave the State within the time specified in the order,
(
b
) where the person who is the subject of a removal order has failed to comply with a requirement in a notification under Regulation 21(4)(
b
) or a requirement under Regulation 21(7), or
(
c
) he or she suspects that the person may seek to avoid removal from the State in accordance with the removal order.
(3) When an arrest is made under paragraph (1) and the person arrested is brought to a prison or to a Garda Síochána station, the Governor of the prison or the Member in Charge of the Garda Síochána station, as the case may be, shall be informed of the fact.
(4) Subject to paragraph (9), a person arrested under paragraph (1) may be detained only until such time (being as soon as is practicable) as arrangements are made for his or her removal from the State and he or she is removed from the State in compliance with the removal order concerned.
(5) A person arrested and detained under paragraph (1) 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.
(6) 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 family members who are accompanying him or her, if any, on board such ship, railway train, road vehicle or aircraft and afford him or her and his or her family members proper accommodation and maintenance during the journey.
(7) Where an immigration officer or a member of the Garda Síochána has reasonable grounds for believing that a person is not under the age of 18 years, paragraphs (1) to (6) and paragraph (9) shall apply to him or her as if he or she had attained the age of 18 years.
(8) 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 under paragraph (1), 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.
(9)(
a
) A person shall not be detained under this Regulation for a period or periods exceeding 28 days in aggregate.
(
b
) The following periods shall be excluded in reckoning a period for the purpose of subparagraph (
a
)
(i) any period during which the person is remanded in custody pending a criminal trial or serving a sentence of imprisonment,
(ii) any period spent by the person on board a ship, railway train, road vehicle or aircraft, and
(iii) if the person has—
(I) requested a review under these Regulations of the removal order in relation to which he or she is the subject, or
(II) made an application for judicial review as referred to in
section 5
of the
Illegal Immigrants (Trafficking) Act 2000
(No. 29 of 2000) of the removal order,
any period spent by the person in a place of detention between the date of the request or the application, as the case may be, and the date of its final determination (including where notice of appeal is given, the period between the giving thereof and the final determination of the appeal or any further appeal thereform or the withdrawal of the appeal) or, as appropriate, the expiry of the ordinary time for instituting any such appeal.
Exclusion orders
23. (1) Subject to this Regulation, the Minister may make an order under this Regulation ("exclusion order") in respect of a person where in the opinion of the Minister the person represents a danger for public policy or public security by reason of the fact that his or her personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
(2) An exclusion order shall require the person in respect of whom it is made, for the period specified in the order (“exclusion period”), not to enter the State.
(3) Where the Minister proposes to make an exclusion order, he or she shall notify the person concerned in writing of the proposal and shall provide to the person a copy of the proposed order, in a language that the person may reasonably be expected to understand.
(4) A notification under paragraph (3) shall contain—
(
a
) 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 paragraph (3),
(
b
) a statement that the person concerned may make representations in writing to the Minister, which shall include the particulars specified in Schedule 4, within 15 working days of the date of issue of the notification, and
(
c
) the proposed duration of the exclusion period.
(5) In determining whether to make an exclusion order in respect of a person the Minister shall consider any representations made by that person in accordance with paragraph (4)(
b
).
(6)(
a
) Where the Minister decides not to make an exclusion order, he or she shall notify the person of that fact.
(
b
) Where the Minister decides to make an exclusion order, he or she shall, in writing and in a language that the person may reasonably be expected to understand, notify the person concerned of that fact and the notification shall, unless the Minister certifies that it would endanger the security of the State to make them known, contain the reasons for the making of the order.
(7) The notification referred to in paragraph (6)(
b
) shall be accompanied by the exclusion order and the person shall comply with the order.
(8)(
a
) Where there has been a material change in the circumstances which justified the making of an exclusion order, a person who is the subject of the order may apply, in accordance with subparagraphs (
b
) and (
c
), to the Minister to have the order revoked or the exclusion period concerned reduced.
(
b
) An application referred to in subparagraph (
a
) may be made after—
(i)3 years, or
(ii) such shorter period as the Minister considers reasonable in all of the circumstances,
has passed since the date of enforcement of the exclusion order concerned.
(
c
) An application referred to in subparagraph (
a
) shall contain—
(i) a statement by the person concerned setting out the material change in the circumstances that justified the making of the exclusion order, and
(ii) the particulars specified in Schedule 4.
(9) Subject to paragraph (10), the Minister may revoke an exclusion order or reduce the exclusion period concerned—
(
a
) on application under paragraph (8), or
(
b
) on his or her own initiative, where information indicating a material change in the circumstances that justified the making of the exclusion order comes to his or her attention,
(10) Before revoking an exclusion order or reducing the exclusion period concerned, the Minister shall—
(
a
) in the case of an application under paragraph (8), consider the information submitted under paragraph (8)(
c
),
(
b
) notify the person who has been the subject of the exclusion order of new information (if any) which is relevant to a decision of the Minister under paragraph (11) and, where such information has been notified by the Minister, give the person concerned an opportunity to make representations in writing to the Minister which shall include the particulars specified in Schedule 4 within 15 working days of the issue of the notification, and
(
c
) where applicable, consider the representations (if any) made under subparagraph (
b
).
(11) The Minister shall, as soon as is practicable and, in any event, not later than 6 months of receiving—
(
a
) an application pursuant to paragraph (8), or
(
b
) the information referred to in paragraph (9)(
b
),
decide whether to revoke the exclusion order or reduce the exclusion period concerned, as the case may be.
(12)(
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 the person’s presence in the State would be contrary to public policy or public security.
(
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 (8).
(13) An exclusion order shall be in the form set out in Schedule 12 and shall be accompanied by such information as is necessary to inform the person concerned of the administrative and judicial authorities with whom he or she may lodge an application for a review.
Notices etc.
24. (1) Notices, representations in writing or documents required or authorised by these Regulations to be sent or given to the Minister or a registration officer shall be deemed to have been duly sent or given if—
(
a
) sent by prepaid registered post, or
(
b
) sent by facsimile where confirmed by a successful transmission report, or
(
c
) delivered to the Minister, where the person concerned has a receipt for delivery.
(2) Where a notification is required or authorised by these Regulations to be served on or given to a person other than the Minister, it shall be addressed to him or her and shall be given to him or her in one of the following ways
(
a
) by delivering it to him or her, or
(
b
) by sending it by prepaid registered post addressed to him or her at the address most recently furnished by him or her or, in the case of his or her solicitor, if any, at his or her address, or, in a case in which address for service has been furnished, at that address.
(3) Where a notice under these Regulations has been sent to a person in accordance with paragraph (2)(
b
), the notice is deemed to have been duly served on or given to the person on the third working day after the day on which it was so sent.
Review of decisions
25. (1) A person who has, or who claims to have, an entitlement under these Regulations to enter or reside in the State may seek a review of any decision concerning such entitlement or claimed entitlement.
(2) An application for review under this Regulation shall be submitted to the Minister within 15 working days of the receipt by the person concerned of the decision and shall set out in writing the grounds for review and the particulars specified in Schedule 4.
(3) The Minister may, where he or she is satisfied that it is warranted in the particular circumstances, extend the period referred to in paragraph (2) within which a review must be submitted.
(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. (1) The Minister may—
(
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. (1) The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights
(
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. (1) The Minister, in making his or her determination of any matter relevant to these Regulations, may disregard a particular marriage as a factor bearing on that determination where the Minister deems or determines that marriage to be a marriage of convenience.
(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. (1) The Minister, in making his or her determination of any matter relevant to these Regulations, may disregard a particular civil partnership as a factor bearing on that determination where the Minister deems or determines that civil partnership to be a civil partnership of convenience.
(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. (1) A person who—
(
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. (1) Where, before the date on which these Regulations come into operation, a person was granted permission to enter the State as a qualifying family member in accordance with Regulation 4 of the Regulations of 2006 and, immediately before that date, continues to reside in the State on the basis of the permission, that person shall be considered to be a qualifying family member within the meaning of these Regulations.
(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. Subject to Regulation 31, the Regulations of 2006 are revoked.
SCHEDULE 1
Regulations 4(1) and (2), 5(7) and 19
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of
11
th December
, 2015.
I, FRANCES FITZGERALD, Minister for Justice and Equality, in exercise of the powers conferred on me by
section 3
of the
European Communities Act 1972
(No. 27 of 1972) and for the purpose of giving further effect to Directive 2004/38/EC
1
of the European Parliament and of the Council of 29 April 2004, hereby make the following Regulations
Citation and Commencement