S.I. No. 57/1997 - European Communities ( Right of Residence For Non Economically Active Persons ) Regulations 1997

S.I. No. 57 of 1997.

EUROPEAN COMMUNITIES ( RIGHT OF RESIDENCE FOR NON ECONOMICALLY ACTIVE PERSONS ) REGULATIONS 1997

I, Nora Owen, Minister for Justice, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 90/364/EEC of 28 June 1990 ⁽¹⁾, Council Directive 90/365/EEC of 28 June 1990 ⁽²⁾ and Council Directive 93/96/EEC of 29 October 1993 ⁽³⁾, hereby make the following regulations:

1 Citation

1. These Regulations may be cited as the European Communities (Right of Residence for Non-Economically Active Persons) Regulations, 1997.

2 Interpretation

2. (1) In these Regulations -

"the Council Directives" means Council Directive 90/364/EEC of 28 June 1990 ⁽¹⁾, Council Directive 90/365/EEC of 28 June 1990 ⁽²⁾ and Council Directive 93/96/EEC of 29 October 1993 ⁽³⁾;

"dependants" of a person, means the person's spouse, children under 18 years of age of the person and his spouse, and in the case of persons to whom these Regulations apply other than students, other children and grandchildren of the person and the spouse if such other children and grandchildren are dependent on the person, and dependant direct lineal ancestors of the person and the spouse;

"immigration officer" means a person appointed by the Minister under Article 16 (1) of the Aliens Order, 1946 ( S. R. & O. No. 395 of 1946 );

"land" shall include arrival or entry by any form of conveyance, including entry over a land frontier, and references to landing shall, unless the context otherwise indicates, be deemed to include references to attempting to land;

"the Minister" means the Minister for Justice;

"Member State" means a Member State of the European Union; or of the European Economic Area.

"other non-economically active persons" means persons other than students or retired persons who are not established or wishing to become established under Community law in the State, nor coming to provide or receive a service in the State, nor coming to take up or pursue an activity as an employed person, and who do not have the right of residence in Member States under other provisions of the laws of the European Union:

"registration district" means the Dublin Metropolitan Area of the Garda Síochána and elsewhere a Garda Síochána District;

"registration officer" means, in the Dublin Metropolitan Area of the Garda Síochána, the officer in charge of the Aliens Registration Office in that area, and elsewhere a superintendent of the Garda Síochána in a Garda Síochána District;

"residence permit" means a permit issued by the Minister under Regulation 5 (a);

"residence document" means a document issued by the Minister under Regulation 5 (b);

"retired persons" means employees and self-employed persons who have permanently ceased their occupational activity;

"students" means persons who are enrolled in an educational establishment in the State for the principal purpose of following a vocational training course there.

⁽¹⁾ O.J. No. L180 of 13.07.1990, p.26

⁽²⁾ O.J. No. L180 of 13.07.1990, p.28

⁽³⁾ O.J. No. L317 of 18.12.1993, p.59

(2) A word or expression that is used in these Regulations and is also used in the Council Directives has, unless the contrary intention appears, the meaning in these Regulations that it has in the Council Directives.

(3) In these Regulations -

( a ) a reference to a Regulation or Schedule is a reference to a Regulation of or Schedule to these Regulations, unless it is indicated that a reference to some other Regulations is intended, and

( b ) a reference to a paragraph or a subparagraph is a reference to a paragraph or subparagraph of the Regulation or Schedule in which the reference occurs unless it is indicated that a reference to some other Regulation or Schedule is intended.

3 Application

3. (1) Subject to paragraph (2), these Regulations shall apply to nationals of Member States, other than persons born in the United Kingdom, who are -

( a ) students,

( b ) retired persons, or

( c ) other economically non active persons,

and their accompanying dependants.

(2) A person born in the United Kingdom does not have to comply with any of these Regulations other than Regulation 6(2).

5 ..

4. A person to whom these Regulations apply who produces for inspection by an Immigration Officer a valid national identity card or passport as evidence of his nationality and identity, may not be refused leave to land unless -

( a ) he is suffering from a disease or disability specified in the First Schedule, or

( b ) his personal conduct has been such that it would be contrary to public policy or would endanger public security to grant him leave to land.

5 Issue of Residence Permit and Residence Document

5. The Minister shall, subject to these Regulations, -

( a ) issue to a person who is a national of a Member State to whom these Regulations apply a document ("a residence permit") as evidence of the right of residence in the State with his accompanying dependants who are nationals of a Member State to whom these Regulations apply which contains the information set out in the Second Schedule in a legible form or a non-legible form capable of being reproduced in a legible form or both, and

( b ) issue to a person who is not a national of a Member State and who is a dependant of a person who is the holder of a residence permit, a document ("a residence document") as evidence of the right of residence in the State which contains the information set out in the Third Schedule in a legible form or in a non-legible form capable of being reproduced in a legible form or both.

6 Application for Residence Permit or Residence Document

6. (1) A person who is a national of a Member State to whom these Regulations apply and who wishes to take up residence in the State shall apply for a residence permit to the registration officer of the registration district in which the person is located.

(2) A dependant of a person referred to in paragraph (1) who is not a national of a Member State shall, subject to paragraph (3), make an application, or have an application made on the dependant's behalf by the person referred to in paragraph (1), for a residence document to the registration officer of the registration district in which the dependant is located.

(3) The Minister may require a person to whom these Regulations apply who has not made an application required under paragraph (1) or (2), as the case may be, to make the relevant application within such time as the Minister specifies.

(4) Where a person is making an application for a first residence permit or residence document the Minister, if in the Minister's opinion in any particular case it is desirable to do so, may require that person or any accompanying dependant to undergo a medical examination by a registered medical practitioner for the purpose of ascertaining whether or not the person is suffering from any disease or disability referred to in the First Schedule.

7 Refusal of Residence Permit or Residence Document

7. (1) A residence permit shall only be issued where the Minister is-

( a ) (i) in the case of a person referred to in Regulation 3(1)(a), assured by the applicant that he has sufficient resources to support himself, his spouse and any accompanying dependants,

(ii) in the case of a person referred to in Regulation 3(1)(b), satisfied that the applicant is in receipt of an invalidity or early retirement pension or old age benefits or of a pension in respect of an industrial accident or disease of an amount sufficient to support himself, his spouse and any accompanying dependants, or

(iii) in the case of a person referred to in Regulation 3(1)(c), satisfied that the applicant has sufficient resources to support himself, his spouse and any accompanying dependants, and

( b ) satisfied that the applicant is able to provide full medical and health insurance in respect of himself, his spouse and any accompanying dependants.

(2) In these regulations, a person shall not be regarded as having sufficient resources to support himself and his dependants where, but for the fact of not having made a claim, he would otherwise qualify for assistance under the Social Welfare Acts.

(3) The Minister may refuse to issue a first residence permit or residence document where the applicant -

( a ) having been required to undergo a medical examination referred to in Regulation 6(4) fails to do so,

( b ) fails to satisfy the Minister that he is a person to whom these Regulations apply, or

( c ) is suffering from a disease or disability specified in the First Schedule.

(4) The Minister may refuse to issue a residence permit or document where the Minister is satisfied that the conduct or activities of the applicant is such that it would be contrary to public policy or would endanger public security or health to permit the applicant to stay in the State.

8 First Residence Permit or Document

8. Subject to these Regulations, a first residence permit or residence document shall be issued to an applicant for such a permit or document within 6 months of the date of the application.

9 Validity of Residence Permit or Residence Document

9. (1) A residence permit or a residence document shall be valid throughout the State.

(2) A person to whom these Regulations apply may, subject to Regulation 14, remain in the State for 3 months without applying for a residence permit or residence document.

(3) An applicant for a first residence permit or residence document may, subject to Regulation 14, remain in the State pending the communication to him of a decision on his application.

(4) The period of validity of a residence permit issued to a person referred to at paragraph (b) or (c) of Regulation 3(1) shall be not less than 5 years and, subject to Regulation 14, a residence permit so issued shall be renewable automatically.

(5) The period of validity of a residence permit issued to a person referred to at paragraph (a) of Regulation 3(1) shall be that of the expected duration of the course of study and subject to Regulation 14, a residence permit so issued shall be extended at the expiry of its validity for such period as may be required to facilitate the actual completion of the course.

(6) The period of validity of a residence document shall be the same as that of the residence permit issued to the person on whom he is dependent.

(7) A break or breaks in residence not exceeding 6 consecutive months, or absences for military service for the State of which he is a national, shall not affect the validity of a residence permit.

(8) A person who has been granted a residence permit or a residence document or is specified in a residence permit shall be re-admitted to the State on production of a valid national identity card or passport.

10 Evidence by Applicant

10. The Minister may require the production of satisfactory evidence by an applicant for a residence permit or residence document that he is a person to whom these Regulations apply.

11 Withdrawal of Residence Permit or Residence Document

11. A residence permit or residence document which is valid shall be withdrawn from the person to whom it was issued if the Minister determines that -

( a ) the conduct of the person concerned has been such that it would be contrary to public policy or would endanger public security to allow him remain in the State,

( b ) the person no longer has sufficient resources to support himself, his spouse and any accompanying dependants,

( c ) the person no longer has full medical insurance in respect of himself, his spouse and any accompanying dependants, or

( d ) he is a person to whom the Regulations no longer apply.

12 Rights of Residence

12. (1) Subject to the Regulations, the holder of a residence permit or residence document shall be entitled to reside in the State for the period specified in the permit or document.

(2) The holder of a residence document shall cease to have any entitlements under the Regulations if the national of a Member State on whom he is dependant -

( a ) is refused leave to land,

( b ) is refused a residence permit,

( c ) has his residence permit withdrawn, or

( d ) is required to leave the State.

(3) The spouse and any dependent child of the holder of a valid residence permit who is specified in the permit or holds a residence document shall be entitled while so specified or so holding to pursue an activity as an employed or self-employed person within the State.

13 Right of certain persons to remain in the State

13. The dependants of a person who at the time of his death had held a valid residence permit and has resided continuously in the State for 5 years may apply to remain in the State provided that they have resided in the State for 5 continuous years up to the time of the death of the person who had held the residence permit.

14 Requirement to leave the State

14. A person to whom these Regulations apply may be required to leave the State within the time specified in Regulation 15 —

( a ) where the person has been refused a residence permit or residence document,

( b ) where the person refuses to comply with a requirement under Regulation 6(3) or (4), or

( c ) where, in the opinion of the Minister, the conduct or activities of the person is such that it would be contrary to public policy or it would endanger public security or health to permit the person to stay in the State.

15 Notification of Reasons

15. (1) Unless the Minister certifies that it would endanger the security of the State to make them known, the reasons on which a decision requiring a person to whom these Regulations apply to leave the State or refusing to issue or renew a residence permit or residence document in his favour, is based shall be notified to the person, and the notification shall include an indication to the person of the time within which he is required to leave the territory of the State.

(2) The time referred to in paragraph (1) shall, unless the Minister certifies that the matter is urgent, not be less than 15 days in a case where the person concerned has not received a first residence permit or residence document, or less than one month in any other case.

16 Consideration of Case

16. (1) A person who is the holder of a residence permit or residence document may not, unless the Minister certifies that the matter is urgent, be refused a renewal of the permit or document or be required to leave the State except after his case has been considered by an authority appointed under Regulation 17, before which the person may appear and be heard and be represented.

(2) A person who is not the holder of a residence permit or a residence document, who is required under these Regulations to hold such a permit or document, and who is refused leave to land or is refused a first residence permit or residence document, or who is informed that he is being required to leave the State, shall if he so requests have his case referred to an authority appointed under Regulation 17, before which the person may appear, and be heard and represented unless the Minister certifies that his doing so would endanger the security of the State or another Member State.

17 Appointment of Authority

17. (1) The Minister may appoint a person to be an authority for the purpose of considering representations against a decision of the Minister or of an Immigration officer under these Regulations, in relation to a person to whom Regulation 16 applies.

(2) An authority appointed under this Regulation shall as soon as may be submit to the Minister its views of any case referred to it, and the Minister shall consider the views of the authority so submitted.

18 Notification of change of address

18. The holder of a residence permit who changes his place of residence shall within 7 days notify the registration officer of the registration district in which he is located of the change.

19 Deportation and Offences

19. (1) A person who fails to comply with these Regulations or is required to leave the State in accordance with these Regulations and who fails to do so shall:-

( a ) be liable to be deported, and

( b ) be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £1,000.

(2) An offence under this Regulation may be prosecuted by the Minister.

20 Access to Maintenance Grants by Students

20. Nothing in these Regulations shall establish any entitlement to the payment of maintenance grants to students to whom these Regulations apply.

21 Saver

21. Nothing in the Aliens Orders, 1946 to 1997, shall invalidate any provision of these Regulations, but otherwise those Orders shall continue to apply to the persons to whom these Regulations apply.

22 Revocation

22. The European Communities (Right of Residence for Non-Economically Active Persons) Regulations, 1993 ( S.I. No. 109 of 1993 ), are hereby revoked.

FIRST SCHEDULE

A.  Diseases which might endanger public health:

(1) Diseases subject to the International Health Regulations for the time being adopted by the World Health Assembly of the World Health Organisation;

(2) Tuberculosis of the respiratory system in an active state or showing a tendency to develop;

(3) Syphilis;

(4) Other infectious or contagious parasitic diseases in respect of which special provisions are in operation to prevent the spread of such diseases from abroad.

B. Diseases and disabilities which might justify decisions on grounds of public policy or which might endanger public security:

(1) Drug addiction;

(2) Profound mental disturbance, manifest conditions of psychotic disturbance with agitation, delirium, hallucinations or confusion.

SECOND SCHEDULE

Department of Justice

Residence Permit

issued pursuant to the European Communities (Rights of Residence for Non-Economically Active Persons) Regulations, 1997 ( S.I. No. 57 of 1997 )

1. Surname ____________________________________________________________

2. First name(s) _________________________________________________________

3. Date of birth _________________________________________________________

4. Place of birth _________________________________________________________

5. Nationality ___________________________________________________________

6. Identity Card Number __________________________________________________

 and/or

 Passport Number ______________________________________________________

7. Date of issue _________________________________________________________

8. Valid until ___________________________________________________________

9. Permit Number _______________________________________________________

10. Signature ____________________________________________________________

11. Address in the State ___________________________________________________

         _______________________________________________

          ________________________________________________

 any change(s) of

address in the State____________________________________________________

         _______________________________________________

          ________________________________________________

12. Dependants

13. Official endorsements, etc.

THIRD SCHEDULE

Department of Justice

Residence Document

issued pursuant to the European Communities

(Rights of Residence for Non Economically Active Persons)

Regulations, 1997 ( S.I. No. 57 of 1997 )

1. Surname ____________________________________________________________

2. First name(s)_________________________________________________________

3. Date of birth _________________________________________________________

4. Place of birth _________________________________________________________

5. Nationality ___________________________________________________________

6. Identity Card Number __________________________________________________

and/or

Passport Number _____________________________________________________

7. Date of issue _________________________________________________________

8. Valid until ___________________________________________________________

9. Document Number ____________________________________________________

10. Signature ____________________________________________________________

11. Details of relevant residence permit holder:-

12. Official endorsements, etc.

GIVEN under my Official Seal, this 30 day of January, 1997.

Nora Owen

MINISTER FOR JUSTICE