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Advice on Individual Rights in Europe
Immigrant Council of Ireland’s Successful Review of Residence Card Refusal
The Immigrant Council of Ireland (ICI) was approached by a dual UK/Irish national and her non-marital partner
from New Zealand, with whom she had been in a durable duly attested relationship of more than three years,
after the application for a residence card for the partner had been refused on the basis that the couple had failed
to provide evidence of the UK/Irish national having supported her partner and provided health insurance cover
for him during their stay in Glasgow before their relocation to Dublin.
The original decision maker also referred to Article 3 of Directive 2004/38/EC which states that the Directive
shall apply only to EU citizen’s who “move to reside in a Member State other than that of which they are
national” and concluded that a dual UK/Irish national can only rely on the Directive if she has shown that she
has exercised her EU Treaty Rights in another Member State together with her partner prior to moving to the
Republic of Ireland.
The ICI submitted an application for the review of the decision in writing to the EU Treaty Rights Review Unit
in the Irish Naturalisation and Immigration Service (INIS), arguing that the UK/Irish national had been wrongly
classified as a ‘returning Irish national’ rather than as a UK national coming to live and work in the Republic of
Ireland for the first time in her life in exercise of her rights pursuant to Directive 2004/38/EC.
The argument, made by the ICI on behalf of the couple, was that irrespective of whether or not the EU national
in this case is an Irish citizen, or UK citizen, or both, it is well established that a dual national of two Member
States may still rely on their second nationality to obtain rights under Community law in a Member State of
which they may also be a national. The ICI submitted that the case in question should be distinguished from that
decided by the CJEU in the case of McCarthy –v- Secretary of State for the Home Department, wherein it was
found that “Article 3(1) of the Directive 2004/38/EC (...) must be interpreted as meaning that the Directive is
not applicable to a Union citizen who has never exercised his right of free movement who has always resided in
the Member State of which he is a national and who is also a national of another Member State.”
The review application, which was successful, was made without prejudice to the fact that the decision
communicated to the applicants failed to “specify the court or administrative authority with which the person
concerned may lodge an appeal” in line with Article 30 of Directive 2004/38/EC.
Hilkka Becker, May 2013
Advice Line: 44 20 7831 3850
Telephone: 44 20 7831 4276
Fax: 44 20 7404 7760
e-mail: [email protected]
Third Floor, 17 Red Lion Square, London WC1R 4QH
Company Limited by Guarantee, Reg. No. 2824400 Charity Registered No. 1090336
Participatory Status
Organisation No.
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