Returning to Ireland to study with non-EU wife

[pinksoir]

So my wife and I have been in Spain and she has an EU Family Residence Card for here. I'm Irish/British dual national.

Our original plan was for me to do a master's course here in Spain, however the university messed up my application so I didn't get in to the course. Since getting here on the 5th of May I've been working at an English language academy part time. Because it was the summer and therefore the end of the academic year, the academy didn't offer me a contract but paid me in cash. I applied for some jobs and was offered a contract at another academy beginning end of September.

However, I also applied for master's courses in Ireland and was offered a great one which I accepted and thus declined the job offer. As my wife has a residence card for Spain she is free to travel with me to Ireland. But I am unclear as to where we stand with regards to my studying for a year and her being present in Ireland during that time. We will be staying in my mother's house and we have a small amount of savings to tide us over. It isn't an ideal situation financially, but undertaking this course of study is the best thing for our future. Obviously we will be living frugally and will be supported with food etc. by my mother (which again sin't ideal, but necessary. My poor mother!)

Can anyone point us in the right direction? We will be consulting a solicitor as soon as we land in Ireland, but it'd be nice to have some idea of our options.

Thanks

EDIT TO ADD: My wife's residence card is under my British passport number. I was born in Ireland and lived there since birth, however.

[Casa]

I don't believe that your wife's Spanish residencia will allow her entry into Ireland and as you are an Irish/British dual national my understanding is that she will need to apply for a spouse settlement visa under Irish immigration rules. Or are you intending to take the Surinder Singh route?
What nationality does your wife hold?

[pinksoir]

My understanding is that she can enter into Ireland without a visa as per here:

http://www.immigrationboards.com/irelan ... 78980.html

Is this wrong?

Yes, I suppose it's sort of Surinder Singh, but we do not intend to settle in Ireland, only to reside while I am doing my master's course.

She's Chinese.

[Casa]

Regarding Surinder Singh; having been in Spain for such a short time and with payment from the brief period of employment being paid in cash, it will be difficult to prove you have been exercising your Treaty rights. Have you registered with the Agencia Tributaria for tax? Do you have a N.I.E number? Are you and your wife registered on the padrón?

[pinksoir]

Thanks. Yes I have an NIE number. I am not registered for tax though. I applied for my EU residence card (NIE) here in Spain as self sufficient combined with private medical insurance (as my intention was to attend the master course here). It was sufficient for my wife to attain her EU Fam card. Yes, we are both registered on the Padron and we both have private medical insurance (for the year).

[pinksoir]

I appreciate your thoughts on this, Casa.

[Casa]

I'm going to stand back and let one of the others to comment on the right to enter with a Spanish RC. Fellow moderator Obie is far better placed to advise on this. My understanding is that you can't be considered as an EU national in your own country (unless using SS), but I'm open to correction.

[pinksoir]

Ok, great. Thanks.

As far as I can tell (and I am not an expert but have been researching this exhaustively) my wife can enter Ireland as she is a "holder of a document called a Residence card of a family member of a Union citizen" (per Immigration Act 2004 (Visas) Order 2011) so long as it is issued under Article 10 of the directive. Her card has been issued as such. What I have gleaned from various threads on this board is that she can enter/visit the State regardless of me being Irish as she enjoys Free Movement Rights as a holder of this card (accompanied by me, of course).

My main query is to what we can do should she wish to remain in the State while I am studying.

[jul1]

How much money did they accept in Spain as self sufficient? How much did you pay for medical insurance?
Malta says they will accept 23.300eur for you and your spouse as self efficient and you can apply for the resident card with that.
Does anyone know what is the amount required for the same in Bulgaria? Would they accept lets say 15.000eur? Does the money have to be in your account for at least 6 months, or you just show a recent bank account?

I think if you were not Irish citizen only UK the article 10 resident for your wife would be ok for sure, at least entering the country.

[Casa]

How much money did they accept in Spain as self sufficient? How much did you pay for medical insurance?
Malta says they will accept 23.300eur for you and your spouse as self efficient and you can apply for the resident card with that.
Does anyone know what is the amount required for the same in Bulgaria? Would they accept lets say 15.000eur? Does the money have to be in your account for at least 6 months, or you just show a recent bank account?

I think if you were not Irish citizen only UK the article 10 resident for your wife would be ok for sure, at least entering the country.

But the OP is an Irish citizen.
Your questions about medical insurance should be posted in your own thread to avoid taking this one off-track which is unfair to the OP who is waiting for advise on their own questions, not yours.

[pinksoir]

http://www.migrantproject.ie/images/Res ... s%20V8.pdf

Page 25 of this document states that a visa is not required for my wife as she is a holder of a residence card issued under article 10. (Sorry to keep posting the same thing, but this may be useful for others in future). The issue, as has been pointed out, is that it is difficult for me to provide documentary evidence of my having exercised my treaty rights (no payslips, etc.). I can likely get a letter from the place I worked for part time, though (whatever good that may do). But this is only an issue that we would face should my wife apply for residency under Surinder Singh. Entry shouldn't be a problem sans visa it appears. We're going to consult a solicitor (one we used previously who deals with immigration) once we are in Ireland.

[Obie]

I think Casa is Right on the short nature of your residence in Spain, which seems to be 3 months or slightly under, depending on when you entered Spain.

You are correct in the sense that she could enter Ireland with the Residence Card issued by Spain.

However from my dealing with the Department of Justice in Ireland, I will suggest a slightly longer than 3 months residence.

If you are considered as returning Irish National, then you will not need to work for your wife to stay in Ireland.

If you are considered as British, then you will need to be exercising treaty right.

As you Irish Citizenship, I believe you fall within the scope of Surinder Singh. The residence in Spain is short, and if the Case of OB C-456/12 is applied, she may have difficulty in seeking residency rights.

[pinksoir]

Ok, thanks very much for the reply.

I realise the duration of our stay here is short. We entered on the 5th of May, which is just over 3 months ago. Our intention was of course to stay here but events have caused those plans to change.

The problem with staying longer, which we gave a lot of thought to, is that my master course begins in September. Staying longer would have involved putting off doing the master until next year which we decided would not be the best route forward. I've already accepted the offer (as it was time limited) and paid the fee for reserving my place on the course. Not that any of this matters legally of course!

So my thinking is this. As we will only be in Ireland for 1 year we could apply for residency for my wife before 3 months is up. It seems that the processing time of this is up to 12 months. As such, once the application has been submitted she will be able to remain in the State (but not work). If the residency is subsequently approved, all good. If it is denied, then we intend to move either back to Spain, to Netherlands, or to Germany following the completion of my master anyway.

Unless I am mistaken about the processing time for EU Fam Stamp 4?

As regards my nationality, I am Irish by birth but both my parents are English. In fact I never had an Irish passport until last year. However, my understanding is that I can only be considered as Irish when it comes to this as I have never been resident in the UK. Unless I am mistaken on this too?

If I were considered as British, I would be exercising my Treaty Rights by attending University (student in recognised establishment), is this correct?

Thanks again!

[Obie]

Yes you are an Irish National as far as interpretation of EU law is concerned.

[pinksoir]

Yes, I thought so.

I'm not sure if this has any bearing (positively or negatively), but I exercised my Treaty Rights as a British citizen in Spain. For example, all our documentation, our marriage cert (from China and apostilled by the Spanish embassy), our NIEs, empadronamientos, etc. were done under my British passport. I suppose it wouldn't affect it at all as I am the same person and have dual nationality, but just to make sure that things wouldn't be affected as regards a 'returning Irish citizen'.

Also, do you know the expected processing time for applications for Stamp 4 EU Fam (or whichever residence permit my wife would be applying for)?

[Obie]

Processing time are taking a big long these days, which is strictly illegal.

The department has stated that she will not accept application from Irish National's family member, where they do not meet the requirements.

So it will be in your interest to ensure the requirements are met.

[pinksoir]

Thanks very much. Where might one find a list of the requirements?

[jul1]

this might not be the proper approach but if you really just want to reside here for a year without legally working, when you enter Ireland your spouse passport will be stamped, so she can stay here for 3 months and for longer duration she has to apply for the irish resident card, though after 1 year when leaving Ireland no one will check her passport as there is no exit check still in Ireland, especially from smaller airports. I mean she cant even be busted as they literally dont put exit stamps on passports so they dont know when visa required persons left Ireland, that is for sure. I was reading this argument about Ireland`s approach of exit stamps from like 2010, but still in 2016 is the same.
...but if you dont want to risk go by the rules.

or just leave Ireland every 3 months...

[pinksoir]

Cheers. We want to do things fully legally so we're going to consult an immigration solicitor when we get to Ireland. If it's a case of having to leave every 3 months, so be it (we have no intention of settling in Ireland). Though I'm not sure of the legality of that. Hence the solicitor consultation!

[noajthan]

Get up to speed on free movement here:
http://ec.europa.eu/justice/citizen/doc ... 013_en.pdf

If case law of Eind applies to you as a returning SS-er in Eire, you don't need to exercise treaty rights in home country as a returning SS-er.
So all spouse has to do is reside with you.
In that case she should have full rights to reside, work, study.

That is the beauty and elegance of free movement.
Unless there's some Irish quirk or glitch I'm unaware of.

[jul1]

How strict are they about Surinder Singh in Ireland, afaik in UK self-suffiency in other country is not accepted, only actual work. In theory 3 months should be enough exercising treaty rights, but UK will decline even 6 months now, maybe 1 year...

[pinksoir]

The new case of O and B v the Netherlands (2014) holds that it is sufficient that the EU citizen live for at least 3 months in a host member state, and that family life between them and their non-EEA spouse has been strengthened, ie. by living together.

https://www.freemovement.org.uk/surinde ... ion-route/

The UK's tightening on SS is unconstitutional by having the centre of life requirement, and the case law above shows that it is not necessary for the EU citizen to work in the country. In general, the UK's new position on SS is wrong.

As regards working in another EU member state, it seems that there is no consensus as to the amount of hours required, nor the nature of the work:

https://eumovement.wordpress.com/2011/1 ... -a-worker/

Indeed, a worker under EU law includes job seekers. In any case, the case of O and B v the Netherlands updates the requirements for SS such that working is not required.

In my case, as regards my travelling to Ireland to undergo a course of study, I am still regarded a resident of Spain. My residency is not affected by an "absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” [Directive 2004/38/EC]

How this will work i practice, and the rights of my wife, we shall see.

[Obie]

Eind relates to a returning worker and not student.

O& B extends the scope of Eind.

It has to be noted that Mr Eind and his daughter had spend about 12 to 14 months in the UK before returning to his home country.

[pinksoir]

Indeed. But the applicable case law is that of O and B, which holds that more than 3 months is sufficient (ie. longer than the period during which a Union citizen may freely reside in another member state), working is not required, and that family life must have been strengthened.

This is all academic though. It remains to be seen what the best course of action is considering our particular case and what the outcome will be (many things to consider, not least whether it is worth the time and expense when we only want to be there for the duration of my study. Neither of us desire to live in Ireland, in fact going back at this time is undertaken with heavy hearts).

Posting this stuff for future reference of others.

As I am moving to study (for a continuous period of not more than 12 months) I will remain a legal resident of Spain. I'm not sure what this means in relation to my wife's rights.