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The Immigration, Residence and Protection Bill 2008
The Bill sets out a legislative framework for the management of inward migration to Ireland. It lays down important principles governing the presence in the State of foreign nationals and the laws which will apply to those who are not entitled to live in Ireland or work or who are only entitled to reside temporarily.
It sets out the rules and procedures for applying for a visa for entry for residence in the State and for being required when necessary to leave
The Bill sets out statutory procedures to be followed in dealing with applications for visas (new to this country), entry in the State based on current law, residence and permission while in the State and removal from the State based on the present law but with significant changes.
The most fundamental change is that the processes for dealing with applications for protection in the State at present covered by all the Refugee Legislation and the European Communities Regulations 2006 ( S I 518 0f 2006) will be integrated into one unified process at the end of which each applicant has a complete answer to the question whether he or she will be permitted to remain in the State and upon what conditions.
Of special note is the provision in this intended Act for foreign nationals to obtain long term residence permits giving to the holder rights in the State similar in most respects to those of Irish Citizens
The main changes will shortly be outlined on this page and fully explained.
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NEW DEVELOPMENTS FOR THE RIGHTS OF CITIZENS OF THE EU
Directive 2004/38/EC. European Parliament and Council 29/04/2004
This provides for the rights of citizens of the Union and their family members to move and reside freely within the territory of Member States.
This directive has been incorporated into Irish Law pursuant to European Communities ( Free Movement of Persons) ( No 2) Regulations 2006.
Spouses of a Union Citizen working and residing in Ireland can now apply for residence in Ireland subject to lawful residence in another EU member State prior to arrival in Ireland.
The regulations apply to qualifying family members.
The interpretation of the extent of these regulations and the circumstances in which they apply is currently before the High Court and questions have been referred to the European Court of Justice by way of reference for their answers.
The following is a short synopsis of the relevant regulations:
Directive and Regulations
Directive 2004/38/EC
Art 7(1)(a)
All Union citizens should have the right of residence in the territory of another Member State for a period of longer than three months if they are workers or self employed.
Art 7(2)
Right of residence shall extend to family members who are not nationals of a Member State but are accompanying/joining the Union citizen.
SI 656
The Statutory Instrument put in place to give effect to the EU Directive 38 is SI 656
But Irish Regulation 3(2) of SI 656 imposes further requirements that the non EU national family member is;
- Lawfully resident in another MS and;
- Seeking to enter the State in the company of the Union Citizen or Seeking to join the Union Citizen in the State.
One can contend and argue that by imposing these requirements the regulations are ultra vires the powers of the Minister and outside the scope of the Directive set out by the EU.
The relevant rights accruing will be further detailed on this page shortly.
The consequences and rights accruing to EU nationals will shortly be fully outlined on this page.
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