S.I. No. 109/1993 - European Communities (Right of Residence For Non-Economically Active Persons) Regulations 1993.

S.I. No. 109 of 1993.

EUROPEAN COMMUNITIES (RIGHT OF RESIDENCE FOR NON-ECONOMICALLY ACTIVE PERSONS) REGULATIONS 1993.

I, MÁIRE GEOGHEGAN-QUINN, 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 90/366/EEC of 28 June 1990⁽³⁾ (the effects of the last mentioned Directive being maintained by the Court of Justice of the European Communities in its judgement of 7 July 1992⁽⁴⁾ declaring that Directive void), hereby make the following Regulations:

⁽¹⁾ O.J. No. L180 of 13.7.1990, p. 26.

⁽²⁾ O.J. No. L180 of 13.7.1990, p. 28.

⁽³⁾ O.J. No. L180 of 13.7.1990, p. 30.

⁽⁴⁾ Case No. C — 295/90 of 7/7/1992.

1 Citation and Commencement.

1. These Regulations may be cited as the European Communities (Right of Residence for non-Economically Active Person ) Regulations, 1993, and shall come into operation on the 19th day of April, 1993.

2 Interpretation.

2. (1) In these regulations—

"the Council Directive" means Council Directive 90/364/EEC of 28 June 1990⁽¹⁾, Council Directive 90/365/EEC of 28 June 1990⁽²⁾ and Council Directive 90/366/EEC of 28 June 1990⁽³⁾ (the effects of the last mentioned Directive being maintained by the Court of Justice of the European Communities in its judgement of 7 July 1992⁽⁴⁾ declaring that Directive void);

⁽¹⁾ O.J. No. L180 of 13.7.1990, p. 26.

⁽²⁾ O.J. No. L180 of 13.7.1990, p. 28.

⁽³⁾ O.J. No. L180 of 13.7.1990, p. 30.

⁽⁴⁾ Case No. C — 295/90 of 7/7/1992.

"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 dependent 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 Communities;

"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 Communities;

"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" means ordinary dwelling-place, and where a person to whom these Regulations applies has more than one dwelling place, each of such dwelling-places, and the expression "resident" shall have a corresponding meaning;

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

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

"retired person" 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.

(2) A word or expression that is used in these Regulations and is also used in the Council Directive 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. These Regulations shall apply to nationals of Member States specified in the First Schedule who are—

( a ) students

( b ) retired persons, or

( c ) other economically non-active persons,

and their accompanying dependants.

4 Refusal of Leave to Land.

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 Second Schedule,

( 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,

( c ) he cannot provide appropriate evidence that he has sufficient resources to support himself, his spouse and any accompanying dependants,

( d ) he is not able to provide appropriate evidence of full medical insurance in respect of himself, his spouse and any accompanying dependants, or

( e ) he is not able to provide appropriate evidence that he is a person to whom the regulations apply.

5 Issue of Residence Permit and Residence Document.

5. The Minister may, subject to these Regulations,—

( a ) issue to a person who is a national of a Member State to whom these Regulations apply a permit to reside in the State (referred to in these Regulations as a "residence permit"), 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 to reside with the holder of the residence permit in the State (referred to in these Regulations as a "residence document").

6 Application for Residence Permit or Residence Document.

6. (1) 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 he is located.

(2) A dependant of a person referred to in paragraph (1) who is not a national of a Member State may apply for a residence document to the registration officer of the registration district in which the person referred to in paragraph (1) is located.

(3) Where a person is making an application for a first residence permit or residence document the Minister, if in his opinion in any particular case it is desirable to do so, may require that person 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 Second Schedule.

7 Refusal of Residence Permit or Residence Document.

7. (1) A first residence permit or residence document may be refused where an applicant is required to undergo the examination specified in Regulation 6 (3) and fails to do so, or if he fails to satisfy the Minister that he is a person to whom these Regulations apply.

(2) A first or subsequent residence permit or residence document may be refused if the Minister is satisfied—

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

( b ) he cannot provide appropriate evidence that he has sufficient resources to support himself, his spouse and any accompanying dependents,

( c ) he is not able to provide appropriate evidence of full medical and health insurance in respect of himself, his spouse and any accompanying dependents, or

( d ) he is not able to provide appropriate evidence that he is a person to whom these Regulations apply.

(3) A person who has been refused a residence permit or residence document shall leave the State within the time limit specified in Regulation 15.

(4) The only disease or disability in respect of which a decision to refuse to issue a first residence permit or residence document may be based, or in respect of which a person may be required to leave the State, shall be one specified in the Second Schedule.

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 three months without applying for a residence permit or 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 shall be 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 Regulations 3 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 permit or residence document issued to a dependent 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, on 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 shall be re-admitted to the State during the period of validity of the permit or document on production of the permit or document and of a valid national identity card or passport, unless he is a person who has previously been required to leave the State.

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 issued under these Regulations 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 dependents,

( 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 dependent—

( 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 a person to whom these Regulations apply who holds a valid residence permit or residence document shall be entitled while holding such residence permit or residence document 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 had 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 by the Minister to leave the State if the Minister is satisfied that the person does not meet the requirements of Regulation 7 (2) or where the person has not been given a residence permit or residence document, he is suffering from a disease or disability specified in the Second Schedule.

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 grant 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 mater 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 communicate to the Minister its view of any case refeered to it, and the Minister shall consider the views of the authority so submitted to him.

18 Offences.

18. A person who 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.

19 Access to Maintenance Grants by Students.

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

20 Saver.

20. Nothing in the Aliens Orders, 1946 to 1993, shall invalidate any provision of these Regulations, but otherwise those Orders shall continue to apply to the persons to whom these Regulations apply.

FIRST SCHEDULE

1. Subject to paragraph 2, for the purpose of these Regulations, these Regulations shall apply to nationals of Member States who are nationals of Belgium, Denmark, France, the Federal Republic of Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal and Spain and persons (other than persons born in Great Britain or Northern Ireland) who are British citizens and have a right of permanent abode in the United Kingdom—

2. The following shall be deemed not to be nationals of a Member State for the purpose of these Regulations—

( a ) persons who are nationals of the Netherlands solely by birth in or other connection with the Antilles,

( b ) persons who are nationals of France solely by birth in or other connection with one of the French overseas dependent territories.

SECOND 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.

GIVEN under my Official Seal, this 16th day of April, 1993.

MÁIRE GEOGHEGAN-QUINN,

Minister for Justice.

EXPLANATORY NOTE.

These Regulations, set out the rights of entry and residence of certain categories of persons who are nationals of Member States of the European Communities.