UK Nationals Spouses of Irish Citizens Who are not Entitled to Irish Citizenship-Article 10 Residency?

Myra Azzopardi senior adviser for the Citizens Advice Bureau in Spain recently flew to Ireland to meet with the staff of the Citizens Information in Bantry, Cork. The meeting took place on August 16 2019 where Myra was the guest of Sylvia Adamska Information Officer and Martina Conroy.

Those present discussed the circumstances in relation to residency status post Brexit of the numerous UK nationals married or partnered with Irish nationals and residing in Spain. The discussion also included those couples from Ireland who have intentions to relocate to Spain in the future. For the latter the Citizens Information officers will advice those UK/Irish Nationals in a marriage, civil relationship or de facto partnerships of their rights in applying for residency with a non-EU spouse (includes UK nationals who lose their EU citizen status).

Some Irish citizens whose partners are UK Nationals and together are residing in Spain are aware that taking up Irish nationality is not an option For their partners. There is a second option for these UK nationals who are married or in a de facto partnership with Irish nationals that they may not be aware of, this is their rights under EU Directive to retain freedom of movement that does not involve changing nationality.
Sylvia mentioned that there is a backlog for citizenship applications. In one particular case an application was still pending eighteen months after the petition was submitted. These applications are normally processed within six months.

It is important to note that for those in a de facto partnership do not have the right under Irish citizenship law to apply for Irish nationality. There are also those partners who de not meet the residency requirements in Ireland which one supposes is the majority of these couples who are residents of Spain.
Those in the above situation would be best applying for or updating their residency status under Article 10 of the European Directive on the freedom of movement. Unfortunately for those UK Nationals and spouses of EU (including Irish Citizens) already residing legally in Spain and holders of a residency certificate, the Spanish governments recent Royal Decree on the updating of these certificates for a foreigners card (TIE), have failed to include or even mention these citizens rights.

The information can be found in a previous explanatory fact sheet posted earlier this month.
Before proceeding to advise those citizens affected, it would be advisable to follow the information on the rights on application for Irish nationality by marriage.

The information below is lifted from the website of the Citizens Information Ireland.

“If you are the spouse or civil partner of an Irish citizen who is applying for Irish citizenship, you must meet the following conditions:

• You must be married to or in a recognised civil partnership* with the Irish citizen for at least 3 years
• You must have had a period of 1 year’s continuous reckonable residence – see below – in the island of Ireland immediately before the date of your application, and during the 4 years preceding that, have had a total reckonable residence in the island of Ireland amounting to 2 years. Altogether you must have a total of 3 years reckonable residence out of the last 5 years.
• Your marriage or civil partnership must be recognised as valid under Irish law
• You and your spouse or civil partner must be living together as a married couple or civil partners
• You must be of full age, good character and intend to continue to live on the island of Ireland
• You must have made a declaration of fidelity to the nation and loyalty to the State.

*Foreign relationships registered outside Ireland were only recognised by the State on 13 January 2011 when the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 came into force. However, under the Marriage Act 2015, it is now possible for same-sex couples to become legally married and you can no longer register a civil partnership in Ireland. Partnerships registered abroad after 16 November 2015 are not recognised as civil partnerships in Ireland.
Reckonable residence

Certain periods of residence do not count for the purpose of reckonable residence, for example, periods when you did not have permission to remain in Ireland, or you had permission that was for study purposes or while having a claim for asylum examined. You can use the online residency calculator on the INIS website to check if you meet the naturalisation residency conditions”.

It becomes obvious that most of these couples already residing in Spain do not meet the requirements. Below is an extract of information provided for UK nationals married to EU citizens. We reiterate the importance of knowing your rights when officials may still not have been provided with any guidelines for your particular cases after the UK exits the Union.

“The Spanish no deal contingency plans make it clear that non-EU family members of UK Nationals also need to update their cards but does not mention another scenario, ‘UK Nationals who are spouses of EU citizens’. We wish to advise all these citizens that if their circumstances (not included in the royal decree) is not legally formalised as an amendment in the existing or new law, that they should be aware that when making an application for a TIE, that the residence card should be issued under Article 10. This would result in that UK nationals entitlement to “freedom of movements rights” are reserved“.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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