The following categories of persons may seek permission to have their family members accompany or join them in Ireland. The relative strength or each category’s legal right to family reunification is listed in the following descending order:
- EEA nationals residing in the State or intending so to do.
- Declared refugees and persons with subsidiary protection status.
- Irish citizens
- Non-EEA nationals lawfully residing in the State or intending so to do.
The rights of each category to family reunification and the procedure by which it may be secured differs:
EEA nationals residing in the State or intending so to do.
EEA nationals have the strongest right to family reunification.
Directive 2004/38/EC provides that EU citizens and their family members may move and reside freely within the territory of the member states. It applies equally to EEA citizens and their family members.
This Directive is implemented in Ireland by the European Communities (Free Movement of Persons) Regulations 2015. Under the Directive and the transposing Regulations, EU citizens lawfully residing in the State pursuant to their right of free movement or intending to move to the State in exercise of that right, are entitled to have certain family members join them in or accompany them to the State.
“Family members” of EU citizens fall into one of two distinct categories:
“qualifying family members” and “permitted family members”.
A “qualifying family member” is defined as:
The spouse or civil partner of the EU citizen;
A direct descendant of the EU citizen or the EU citizen’s spouse or civil partner who is:
- Under the age of 21 or
- A dependent of the EU citizen or the EU citizen’s spouse or civil partner or
- A dependent direct relative in the ascending line of the EU citizen, or of his or her spouse or civil partner
A “permitted family member” is defined as:
A member of the family of a EU citizen other than a qualifying family member who is
(i) A dependent of the EU citizen
(ii) A member of the household or the EU citizen or
(iii) On the basis of serious health grounds strictly requiring the personal care of the EU citizen
Is the partner with whom a EU citizen has a durable relationship duly attested.
Declared refugees and persons with subsidiary protection status.
The rights of declared refugees and persons with subsidiary protection to family reunification is provided for in Sections 56 & 57 of the International Protection Act 2015. These provisions came into effect on 1 January 2017, thereby repealing the previous family reunification regime provided for under Section 18 of the Refugee Act 1996, which was significantly wider in scope.
Under Section 56, a person with refugee or subsidiary protection status (referred to in the Act as the “sponsor”) may apply to the Minister for Justice and Equality for permission for their “family member” who is outside the State to enter and reside in the State. Under Section 57, a sponsor may apply similarly for family member in the State to be given permission to remain in the State as their family member.
The application must be lodged within 12 months of the date of grant of refugee status/subsidiary protection. The constitutionality of this time limit (provided for in S.56(8) of the 2015 Act ) was upheld by the High Court in the recent case of I.I(Nigeria) v Minister for Justice and Equality (judgment of Humphreys J. delivered on 29 October 2019). It is understood that this decision is currently under appeal.
A refugee/subsidiary protection holder who is naturalised as an Irish citizen is ineligible to apply for reunification under the provisions of the 2015 Act.
The “family member “of a sponsor, for the purpose of these provisions, is defined as:
- Where the sponsor is married, his or her spouse, provided the marriage is subsisting on the date of the sponsor’s application for international protection.
- Where the sponsor is civil partner, his or her civil partner, provided the civil partnership is subsisting on the date of the sponsor’s application for international protection.
- Where the sponsor is, at the time of their application for family reunification, unmarried and under 18 years of age, his or her parents and their children who, on the date of application are unmarried and under 18 years of age.
- A child of the sponsor who on the date of application for family reunification is under the age of 18 and unmarried.
The Rights of Irish citizens and Non EEA nationals to family Reunification
The rights of Irish citizens and Non EEA nationals lawfully residing in Ireland to be reunited with their family members in the State are not provided for by statute. It is established that the Minister has capacity to consider applications for permission to enter and remain in the State and a policy exists outlining the matters that are taken account of by the Minister in determining family reunifications in respect of the Non EEA family members of Irish citizens and Non EEA nationals residing legally in Ireland.
The Policy Document on Non EEA Family Reunification was first published in December 2013 and subsequently amended in 2016. It is intended to offer guidance as to how the Minister exercises the discretion afforded to him/her when determining applications for family reunification made by family members of Irish citizens and Non EEA nationals lawfully resident in Ireland.
The policy document runs to 71 pages.
A Visa required Non EEA national seeking permission to reside in the State with their family member who is an Irish citizen or Non EEA national living legally in the State is required to apply for a “join family” D Visa and lodge their supporting documentation to the appropriate office for consideration.
The Minister operates a number of administrative scheme pursuant to which applications for family reunification are considered in State:
- “The Spouse of Irish National Section” considers applications for permission to remain on behalf of the Non EEA spouse/civil partner of an Irish citizen.
- “The De Facto Relationship Unit” considers applications for permission to remain on behalf of de facto partners of Irish citizens and Non EEA residents legally living in the State.
- “The Residence Unit in Burgh Quay” also accepts applications for permission to remain by a Non EEA national parent of a minor Irish citizen child.
Key Features of the Policy Document on Non EEA Family Reunification
The Policy Document applies to all applications involving Family Reunification where the Minister is exercising discretion i.e. all scenarios but for the following, which are governed by legislation:
1. Applications made by family members of EU/EEA citizens under Directive 38/2004 EC and the transposing Regulations.
2. Applications made by refugees/persons with subsidiary protection pursuant to decision 56 & 57 of the International Protection Act 2015
The policy is cognisant of the provisions of Article 41 of the Irish Constitution (which protects the family unit) and Article 8 of the European Convention (respect for private and family life). The rights guaranteed by these provisions are not absolute in nature but require the State not to disproportionately interfere with family life.
The scope of the Irish citizen’s right to spousal reunification in the State pursuant to Article 41 of the Constitution has been considered by the Court of Appeal in Gorry v Minister for Justice and Equality. This decision is the subject of an appeal to the Supreme Court. Judgment on the appeal is currently reserved. Categorisation of Applicants and Family Relationships
The relative strength of any particular application will be set on a sliding scale, with reference to the immigration status of the applicant and the degree of the relationship to the family member(s) applied for. Each are categorised as a means of assessing their relative strength.
Categories of Applicants:
The following “sponsors” will be eligible to apply for family reunification:
- Irish citizens
- Employment permit holders (Stamp 1 holders)
- Stamp 4 & Stamp 5 holders
- Researchers under a hosting Agreement
- PhD students
- Ministers of Religion holding Stamp 3.
Note: Non-EEA Students (Stamp 2 holders) other than PhD students are not eligible to family reunification.
Family reunification will be facilitated for Irish citizens and certain categories of Non- EEA migrants, whilst the rights of other Non-EEA migrants will be further down the scale. Non-EEA sponsors are sub-divided into two categories, and eligibility to apply for family reunification is to be considered as follows:
Category A sponsors will be automatically eligible to apply for immediate family members, and non-nuclear family members after 2 years:
- Critical Skills Employment Permit Holders
- Business Permission holders
- Intra Corporate Transferees
- PhD students/INIS approved Scholarship programme students e.g.KASP
- PhD students
- Full time non-locum doctors in employment
Category B sponsors will be eligible to apply for immediate family members after 12 months, and non-nuclear family members after 5 years:
- Non Critical Employment Permit Holders
- All stamp 4 holders not covered by other more favourable arrangements.
- Ministers of Religion
Categories of Family Members
Family members are divided into three categories, as follows:
1. Immediate family members – spouse, minor children (including adopted children/wards), de facto partners.
3. Other -siblings, dependent adult children etc.
Irish citizen sponsor: Paragraph 17.2:
- Must have cumulative gross income of at least €40,000, excluding any State benefits, over the three year period prior to application.
- Must not have been totally/predominantly reliant on State benefits for two years prior to application.
Category A Non-EEA Sponsor: Paragraph 17.3
Category B Non-EEA Sponsor: Paragraph 17.4
We will be very happy to assist you in your application to join your family member in Ireland – please contact us for further information.