confusing /conflicting advice from visa lawyer in uk

[Richard W]

As I understand them; these changes basically mean that as you hold Irish nationality, then your wife has to enter the Republic under the Irish immigration rules, not the EEA regulations; even though you also hold British nationality.

If Dirtycash didn't hold British nationality, would he not still be covered by Surinder Singh?

However, as her residence permit will say, if anything, that she is the family member of an EEA national, not an Irish one, it is unlikely that she would be challenged on this by Irish immigration.

Unlikely, but possible; especially as you will be travelling with her. Present your Irish passport, they will know you are Irish; present your British one and they may ask how she managed to obtain UK residence in the UK when she is the wife of a British national.

Her expired residence card will say 'family member'. Her current permanent residence card will not say that.

Are you suggesting that Mrs Dirtycash is no longer entitled to a residence card, but only to a permanent residence card? Under Irish law (statutory instrument, to be precise), residence cards issued under Article 10(1) of directive 2004/38/EC may be substituted for visas. The problem has always been that Mrs Dirtycash's current card is issued under Article 20 of the directive.

From what 7by7 says, it sounds as though Mrs DirtyCash may no longer be entitled to a 'free' Irish visa.

[7by7]

A, for example, Thai woman living in, for example, the UK with her, for example, Irish husband who is exercising an economic treaty right would be able to use Surinder Singh to move to the Republic with him to live.

The area I am unsure about is when they are returning for a holiday or, as in this case, transiting through. Logic says that it should apply; but logic does not always apply to the EEA regulations!

But even if Surinder Singh did apply, she would, I understand, still have to apply for the necessary entry permit under the EEA regulations, as interpreted by the INIS.

Maybe someone more knowledgeable than I, such as Donutz, in this area will comment.

If Surinder Singh does not apply, then Mrs Dirtycash would not, if I have interpreted the changes regarding dual nationality correctly, be entitled to a free Irish visa.

As an EEA residence card is voluntary, not mandatory, then whether she holds one, temporary or permanent, is only relevant in as much as it would show her to be lawfully resident in the UK and may show that her status there is as the family member of an EEA national. As she is a UK resident then any residence card would be issued by UKVI using their interpretation of the regulations; not by INIS. But it would be, of course, up to INIS whether or not they accepted such a card as valid entry clearance for the Republic.

This is getting more and more complicated, not unusual where the EEA regulations are concerned!

So I still believe the simplest course is for Mrs Dirtycash to obtain an Irish visa. Doing so will remove all doubt and certainly satisfy the airline when she checks in at Bangkok for her flight to Dublin.

Edited October 16, 2014 by 7by7

[Richard W]

As an EEA residence card is voluntary, not mandatory, then whether she holds one, temporary or permanent, is only relevant in as much as it would show her to be lawfully resident in the UK and may show that her status there is as the family member of an EEA national. As she is a UK resident then any residence card would be issued by UKVI using their interpretation of the regulations; not by INIS. But it would be, of course, up to INIS whether or not they accepted such a card as valid entry clearance for the Republic.

No, any valid 'temporary' residence card (for a family member) issued under Article 10 of 2004/38/EC is good for entry clearance. The UK treats residence cards from anywhere but the UK, Germany and Estonia as invalid because there is too high a risk of them being faked, and invokes Article 35 to justify their rejection. Irish law (the Immigration Act 2004 (Visas) Order 2012) accepts any valid residence card as a substitute for a visa. Therefore INIS must accept them just as it would accept a visa. Additionally, airlines know they should accept them.

The problem is that Mrs Dirtycash has a permanent residence card, which is issued under Article 20. While that is now good for Schengen states, the Immigration Act 2004 (Visas) Order 2012, even as amended in 2013 (once) and 2014 (once), only explicitly accepts permanent residence cards from Ireland.

The only way I can see that a permanent residence card from the UK need be accepted is if it was accepted as a visa that had allowed and still allowed Mrs Dirtycash to visit the UK. I have no confidence that such an argument would work.

[bobrussell]

What is technically good for entry clearance may not get someone smoothly through immigration without stress and delay.

The official(s) at the border do not always have the knowledge or experience that 'armchair' experts do! Airline staff may be even less aware of the finer points of the law. It is all well and good discussing what is or is not correct paperwork but this is going to be of little comfort to someone stuck at a foreign airport because an airline believes they may be fined!

Pretty embarrassing to be pulled aside at Border Control because an immigration officer decides to question entry clearance.

[Richard W]

The question is not whether her UK issued EEA residence card/permit/stamp/whatever one wishes to call it allows her entry into the Republic.

It does, and we all know it does.

I neither know nor believe that her permanent residence card does. I am merely not certain that it does not.

[7by7]

What is technically good for entry clearance may not get someone smoothly through immigration without stress and delay.

The official(s) at the border do not always have the knowledge or experience that 'armchair' experts do! Airline staff may be even less aware of the finer points of the law. It is all well and good discussing what is or is not correct paperwork but this is going to be of little comfort to someone stuck at a foreign airport because an airline believes they may be fined!

Pretty embarrassing to be pulled aside at Border Control because an immigration officer decides to question entry clearance.

Indeed, and our discussions and hair-splitting over different interpretations of the EEA regulations and directives is of no help to the OP.

So, I repeat: the simplest course is for Mrs Dirtycash to obtain an Irish visa. Doing so will remove all doubt and certainly satisfy the airline when she checks in at Bangkok for her flight to Dublin.

[Jay Sata]

And I disagree and feel we should get a final result from the Irish government which is what I tried to achieve via my application to INIS in Dublin.

I would point out 7by7 ,despite his excellent knowledge of UK immigration law, has no practical experience of Irish law and immigration and has never stated he has even been to Dublin airport hence his errors on so called flights to Belfast.

I will go back to INIS and get more substantive results.EG letter for boarding BKK.

Please feel free to suggest I should ask for more.

Edited October 17, 2014 by Jay Sata

[bobrussell]

If you are having to contact the Irish government to get a firm decision you have to have sympathy for the poor airline check-in staff who have a few minutes to decide to allow boarding or not. The worry would be that they may use the excuse of 'if in doubt, don't'!

Getting a clear answer from the UKVI is like getting blood out of a stone but from what I see here the Irish authorities are somewhat better to deal with!

The advice to get an Irish visa still strikes me as sensible to avoid stress and worry. I find checking in stressful enough without adding another worry!!

I freely admit to being a non-expert on EU rules!

[dirtycash]

I got email today from inis. My wife needs to apply for visa to travel in shengen zone.

[Donutz]

I got email today from inis. My wife needs to apply for visa to travel in shengen zone.

Huh?

- Could you post the contents of the email here (removing all personal info, reference numbers or anything else that can identify you).

- What has INIS got to do with Schengen visa? Ireland has it's own visa system and even if you'd have a Schengen visa it would not give entry Ireland (if a visa is required for Ireland), just as an Irish or UK visa will not give access to the Schengen zone. Or do I have to assume you accidently wrote " Schengen" where you meant " Irish" visa?

-- I suppose they can give advice (for Irish citizens) who wonder if they can take somebody to the Schengen zone, UK etc. Just as one could ask UKVI about Schengen or a Schengen immigration department about UK and Ire visas. Though since they wouldn't have any actual authority over such visas it wouldn't be more then a genuine advice which might not be entirely correct. or they might simply tell you that you'd need to contact the relevant authorities (Schengen embassies or immigration departments when traveling to the Schengen zone). Personally I wouldn't contact the Dutch immigration department (IND) about Irish or UK visas, not the most customer orientated bunch so they'd probably not help me or it might not be entirely accurate.

- Directive 2004/38/EC still applies so we come back to the endlessly mentioned issue of " in theory your wife is a citizen of an EU national, exercising their treaty rights in an other country as residents so the wife should have a Residence Card -and not a permit- as per article 10 of Directive 2004/38/EC- stating that she is a family member of an EU/EEA national. Her permanent card does NOT mention this for some reason only the UK authorities may be able to tell you and thus a borderguard at the Irish or Schengen border may not accept visa free entry since the card does not state she is a family member of an EU/EEA national. Thus a visa would be required and could be obtained on the spot if you manage to prove that the wife is traveling with the EU national (ie that you are indeed married).

-- Which -as suggested several times by several people- translates to " it's best to get an Irish visa even though officially she would not need it, but to avoid any trouble at the border or (more likely) checkin, just get the visa since it's free anyway.

Some one may wish to contact UKVI though why permanent card issued under 2004/38 lacks the text that it should have on it, causing all this confusion.

\I'm done.

[dirtycash]

hello

here is the email i recieved today from inis ( irish immigration dept ) see below -

Visa Mail

15:04 (1 hour ago)

to me

Thank you for your enquiry.

I am directed by the Minister for Justice and Equality and Defence to refer
to your correspondence of 20/10/2014.

It is open to a visa required National to make a visa application, for any
purpose, the onus resting with the applicant to satisfy the Visa Officer as
to why the visa should be granted. All information that is wished to have
taken into consideration should be included where a visa application is
submitted.

The first step of the visa application process is the completion of an
online application form, which can be accessed via the following link:
https://www.visas.inis.gov.ie. The signed two page summary sheet, along
with all the required supporting documentation must then be submitted to
the Visa Office/Embassy/Honorary Consulate as indicated on the summary
sheet, contacts for which can be found on:
http://www.dfa.ie/home/index.aspx?id=285

Information when making a visa application can be found on the Irish
Naturalisation and Immigration Services website:

http://www.inis.gov.ie/en/INIS/Pages/Irish%20Visa%20Information

It should be borne in mind however that the information contained on the
website is intended to act as a guideline only. It does not limit the
discretion of the Visa Officer in dealing with individual applications.

I also draw to your attention that a visa is merely a form of pre-entry
clearance to seek permission to enter the State; no automatic right of
entry or residency is conferred. Whether a person is permitted to enter and
the exact period for which s/he is allowed to remain is a matter for the
Immigration Officer at the point of entry.

The processing times for Visa Applications vary depending on the volume of
applications lodged and the time it takes for an application to reach the
Visa Section in Dublin from the Embassy in which it was lodged. You should
allow as much time as possible when applying for a visa but a minimum time
of 8 weeks is recommended.

Please ensure that you quote the visa transaction number if making any
enquiries in relation to the application.

Finally, in accordance with the Data Protection Act, 2003 only the
applicant and the authorised reference, as stated on the online application
form, can be provided with information in relation to an application.

Kind regards,

Visa Customer Services
Visa Office, Dublin
Irish Naturalisation and Immigration Service

[bobrussell]

Or in other words they have been taking lessons on not answering questions! They are saying you might need a visa and here is how to apply for one!

Email could have been written by the UKVI!

Clear as mud!

Still would apply for a visa to sleep soundly.

[Donutz]

Indeed looks like the same copy/paste of prefab answers like UKVI does with it's outsourced "service". I tried to get an answer on traveling/access to the UK under Directive 2004/38 and got crappy general visa copy/paste work as answers. Same seems to happen here. Cheat sheet says "customer asks something about if or how to apply for visa, copy and paste the following template: ...". They make no mention at all of freedom of movement, the directive or traveling with a (non EU) spouse.

So not really an answer at all. Makes you wonder they use the same cheat sheet when an airliner calls to the UK or Irish border if one (spouse of EU citizen traveling together to an other EU country) needs a visa.

[Jay Sata]

I am puzzled as Mr Dirtycash holds dual UK/Irish passports. In the case of the latter his wife is free to travel to the Republic without a visa holding a right to UK residency as well as rights as the spouse of an Irish citizen?

Edited October 21, 2014 by Jay Sata

[dirtycash]

i agree with a few of the above replies, when i got this email yesterday i didnt really understand what they were saying , they would not commit themselves to state clearly if wife could travel or not via dublin to bkk so covering themselves to give a pasted answer from their visa info page.

surely someone there could of given clear answer on her status ? i am away at moment working though i am going to go ask my wifes friend how she was able to fly to bkk via dublin, wifes friend is in belfast / uk under exact same EEA permit as my wife but she has no PR in uk whereas my wife does have PR. ( wifes friend was not required to apply for visa and has flown from dublin - bkk numerous times )

i also must state that when my wife was awarded PR in uk i remember getting papers from her lawyer from the www.lawcentreni.org to state since she now has PR then she is allowed freedom of movemnet witin the EU . i will go home next week and look up these documents and give an update.

Edited October 22, 2014 by dirtycash

[Richard W]

i am away at moment working though i am going to go ask my wifes friend how she was able to fly to bkk via dublin, wifes friend is in belfast / uk under exact same EEA permit as my wife but she has no PR in uk whereas my wife does have PR.

Your wife's friend will have a residence card for a family member issued in response to Article 10 of Directive 2004/38 whereas your wife has a permanent residence card issued in response to Article 20 thereof. As I've stated before, according to its own regulations, the Republic of Ireland accepts any residence card issued for a family member under Article 10 but only the permanent residence card it itself issues.

i also must state that when my wife was awarded PR in uk i remember getting papers from her lawyer from the www.lawcentreni.org to state since she now has PR then she is allowed freedom of movemnet witin the EU .

She has sort of freedom of movement within and to the Schengen states, but I think she would lose it instantly if you dropped dead. It seems that for Schengen, she needs to be accompanying or joining you. I'm not sure about Croatia, Bulgaria, Romania and Cyprus.

[Richard W]

I am puzzled as Mr Dirtycash holds dual UK/Irish passports. In the case of the latter his wife is free to travel to the Republic without a visa holding a right to UK residency as well as rights as the spouse of an Irish citizen?

I could find no basis for such a right. The best I could find was that a few years ago people settled in the UK could get an Irish visa for free, but as that was to be reviewed after 6 months, I don't know whether this offer is still available.

By way of comparison, I've consulted the Immigration(Control of Entry through Republic of Ireland) Order 1972 and its amendments. It seems that an Irish citizen living in Cork and his Thai-only wife have no right to travel together to Belfast by land without her having an EEA family permit or visa issued by the UK.

[dirtycash]

i am away at moment working though i am going to go ask my wifes friend how she was able to fly to bkk via dublin, wifes friend is in belfast / uk under exact same EEA permit as my wife but she has no PR in uk whereas my wife does have PR.

Your wife's friend will have a residence card for a family member issued in response to Article 10 of Directive 2004/38 whereas your wife has a permanent residence card issued in response to Article 20 thereof. As I've stated before, according to its own regulations, the Republic of Ireland accepts any residence card issued for a family member under Article 10 but only the permanent residence card it itself issues.

i also must state that when my wife was awarded PR in uk i remember getting papers from her lawyer from the www.lawcentreni.org to state since she now has PR then she is allowed freedom of movemnet witin the EU .

She has sort of freedom of movement within and to the Schengen states, but I think she would lose it instantly if you dropped dead. It seems that for Schengen, she needs to be accompanying or joining you. I'm not sure about Croatia, Bulgaria, Romania and Cyprus.

yes but surely is my wife has a residence stamp in her passport for 5 years then applied for permanent residence and was awarded permanent residence then she would be in a far better position to travel then her friend who only has a " 5 year residence stamp and no PR " ? plus i will say again i am accompanying her when travelling. i know for a fact her friend went alone with her 2 babies while travelling to bkk via dublin her husband did not go with her.

Edited October 22, 2014 by dirtycash

[tebee]

I was under the impression that the UK and Eire operated a Common Travel Area like a mini-Schengen, each accepting the others visas ?

Also I thought Thailand was a visa waver country for entry into Ireland, so she would not need a visa to enter there anyway.

Have been looking at this myself as I'm thinking of taking a trip back to the UK via Ireland with my wife who holds a EEA 5 year permit, but not a UK one.

[dirtycash]

just one more question , since wife wants to travel via dublin reason being it is allways a lot less expensive , then surely if i got my daughter an irish passport which she is quite entitled to have, then can mother ( thai national ) accompany daughter ( irish national ) on flight ?

just another angle to come from .

thanks

[Richard W]

I was under the impression that the UK and Eire operated a Common Travel Area like a mini-Schengen, each accepting the others visas ?

I believe the UK will still do the entry formalities on Eire's behalf and vice versa. However, to the UK, Eire is outside the common travel area if the traveller is a visa national without a UK visa or, I think, leave to enter the UK. A visa national simply transiting through the UK will need a UK visa, typically a visitor's visa.

Also I thought Thailand was a visa waver country for entry into Ireland, so she would not need a visa to enter there anyway.

Weirdly, the Irish visa waiver program only applies to holders of visitors' visas. The Irish statutory instrument on visas referenced earlier in the thread nails this down.

Have been looking at this myself as I'm thinking of taking a trip back to the UK via Ireland with my wife who holds a EEA 5 year permit, but not a UK one.

The permit should get the two of you into Eire. However, it's only accepted by the UK if it was issued by Germany or Estonia. If your wife is not a visa national only (e.g. Australian) and you not be British, she could cross the land border with you into the UK through exercising an 'enforceable EU treaty right'.

[Richard W]

just one more question , since wife wants to travel via dublin reason being it is allways a lot less expensive , then surely if i got my daughter an irish passport which she is quite entitled to have, then can mother ( thai national ) accompany daughter ( irish national ) on flight ?

just another angle to come from .

thanks

No. As I understand it, only one parent is allowed in on the basis of an Irish citizen child. I rather suspect that your wife would be denied such a claim to entry, as you would be more appropriate as already being Irish. Even more immediately, a visa would still be required.

Has anyone ruled outside the possibility of Mrs DirtyCash also getting a 5-year residence card (£55)? As far as I am aware, she is still entitled to one.

[bobrussell]

As the wife of an Irish/British citizen and settled here, I don't see anyone arguing that she is not entitled to travel freely within the EU. The actual issue is whether airlines or immigration authorities will let her travel or enter on arrival.

EU rules clearly allow her this right but the whole argument is what paperwork is required to prove she has this right and how knowledgeable are airline and border staff!

If Mrs DirtyCash does not live in the Irish republic why would she be entitled to a residence card?

Fascinating as the debate may be, an Irish visa would be free and a lot less hassle than getting held up at one or more airports!

Neither the UKVI or its irish equivalent are likely to give a straight answer however you phrase questions to them. Not satisfactory of course but how it is!

[dirtycash]

UPDATE

here is the latest mail i have recieved from INIS ( irish immigration )

Fw: advice for my wife to travel to bangkok via dublin - eea family member

Inbox

x

Visa Mail

11:30 (59 minutes ago)

to me

Thank you for your enquiry.

I am directed by the Minister for Justice and Equality to refer to your
correspondence of 21/10/2014.

Non-nationals who are family members of a European Union citizen and
holders of a document called “Residence card of a family member of a Union
citizen” as referred to in Article 10 of Directive 2004/38/EC of the
European Parliament and of the Council of 29 April 2004, are not subject to
an Irish visa requirement.

Please contact the issuing authority for advice/guidance as to whether the
document/card your wife has comes within the definition of the Directive,
as implemented by that particular Member State.

Kind regards,


Visa Customer Services
Visa Office, Dublin
Irish Naturalisation and Immigration Service





Visa Mail
Mail-In Query

[Richard W]

As the wife of an Irish/British citizen and settled here, I don't see anyone arguing that she is not entitled to travel freely within the EU. The actual issue is whether airlines or immigration authorities will let her travel or enter on arrival.

EU rules clearly allow her this right but the whole argument is what paperwork is required to prove she has this right and how knowledgeable are airline and border staff!

7by7 has explicitly queried it.

Under EU rules, Mr & Mrs Dirtycash are free to travel about all of the EU except the UK and Ireland if they carry a British marriage certificate with them. If they married in Thailand, they may need a legalised marriage certificate and translation, and that could require recent stamps and separate stamps for each country.

If Mrs Dirtycash has a current, valid residence card (20004/38/EC Article 10) issued by the UK, that would give them access to all EU states. If it has expired, it is probably useless. There is an argument that even a current residence card would not be valid - see below.

Mrs Dirtycash's permanent residence card (20004/38/EC Article 20) gives them entry to Schengen states, but this is more of a concession than an EU right. Unfortunately, the Schengen concession has put the kibosh on the permanent residence card being necessarily acceptable under EU rules. Only common sense and lack of internal controls make permanent residence cards acceptable outside the state of issue.

If Mrs DirtyCash does not live in the Irish republic why would she be entitled to a residence card?

I meant a residence card issued by the UK.

I'm actually uncertain as to whether she ever had a right to live in the UK under actual EU rules, or whether it was just by a faulty transposition of EU rules to British law. Directive 2004/38/EC by itself did not give her any such right. It may be that she no longer has (or never had) a right to an Article 10 residence card.

----

As to the Irish visa, Mrs DirtyCash may need one valid for two entries. One entry might be consumed by the trip from Belfast to Dublin.

[7by7]

So, they're passing the buck to UKVI!

Bit of a cop out as it is their officers who will decide whether or not to admit her to the Republic on the basis of her UKVI issued RP.

I am 100% certain that if you do ask UKVI that they will say it is a matter for the Irish authorities!

This is getting a lengthy and complicated topic.

May I ask why you simply don't get her an Irish visa?

It will definitely satisfy both Irish immigration and the airline check in; and it will be free.

[tebee]

I believe the UK will still do the entry formalities on Eire's behalf and vice versa. However, to the UK, Eire is outside the common travel area if the traveller is a visa national without a UK visa or, I think, leave to enter the UK. A visa national simply transiting through the UK will need a UK visa, typically a visitor's visa.

Yes, but in this case , she is transiting through Eire to the UK where she does have a valid visa - would not Eire just do the entry formalities on the UK's behalf?

Weirdly, the Irish visa waiver program only applies to holders of visitors' visas. The Irish statutory instrument on visas referenced earlier in the thread nails this down.

Ah yes that is true - I had not realized that .

Edit: lost a quote here and can't get it back

The permit should get the two of you into Eire. However, it's only accepted by the UK if it was issued by Germany or Estonia. If your wife is not a visa national only (e.g. Australian) and you not be British, she could cross the land border with you into the UK through exercising an 'enforceable EU treaty right'.

Yes I realize the UK does not automatically accept that card, but on the other hand they are legally obliged to give here a visa if she arrives at the border and they don't accept it as I have EU rights - I've lived and worked in France for over 10 years

We are just going to the UK for a short visit , but I don't fancy all the effort to get a Family Permit as this involves one or two 800km return trips to Paris and far too much paperwork - I have an allergy to this as I'm dyslexic.

So I thought I would combine the trip with a visit to my Grandmother birthplace in Co Cork and then come back via Northern Ireland as they should not worry about letting us on the ferry there as we are already in the UK.

Going back to one of the original posters idea, it might be better not to get your daughter an Irish passport as if she uses a UK one, when your wife is accompanying her as a relative, because her daughter is a national of a different EU country, she will have absolute EU rights to enter the county.

Edited October 22, 2014 by tebee

[7by7]

RichardW;

Non EEA national family members of EEA nationals with dual nationality, e.g. British and Irish, used to be able to use one of those nationalities to reside in the other country via the EEA regulations.

As I assume Mrs Dirtycash did; i.e. use her husbands Irish nationality to obtain residence in the UK. As many other dual Irish/British nationals have also done.

However, the rules changed following an ECJ ruling, and this is no longer possible.

Which is why, as she is married to an Irish citizen for UK immigration purposes, I queried if it would be possible for Mrs. Dirtycash to use her husband's British nationality to enter the Republic; unless Surinder Singh applies.

[7by7]

So I thought I would combine the trip with a visit to my Grandmother birthplace in Co Cork and then come back via Northern Ireland as they should not worry about letting us on the ferry there as we are already in the UK.

Don't rely on that!

Most (all?) ferry companies both in the Republic and Northern Ireland do check and wont board her if she doesn't have valid entry clearance for the UK.

Both UKVI and police officers also carry out random checks at ferry ports.

[dirtycash]

thanks, and yes this is getting a bit long and drawn out but it also gives others in our predicament the information they will need so the more info and advice on tv then surely it is a good thing ?

the reason she doesnt go for an irish visa is because it is not free ( i could be wrong ) it will take time to process , it is a lot of hassle for just one flight to and fro. i have asked wether she is entitled to irish naturalisation so maybe one of you could advise me on that ? also if my child had an irish passport then could mother travel with child ?