Abuse of Rights

Cessation of entitlements

The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following where he or she decides, in accordance with the Regulations, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights:

• a decision that a person be treated as a permitted family member;
• a residence card, a permanent residence certificate or permanent residence card;
• a right of residence under various provisions of the Regulations

Where the Minister suspects, on reasonable grounds, that a right, entitlement or status of being treated as a permitted family member conferred by EU Free Movement Regulations is being claimed, or has been obtained, on the basis of fraud or abuse of rights, he or she shall be entitled to make such enquiries and to obtain such information as is reasonably necessary to investigate the matter.

Where the Minister proposes to exercise his or her power he or she shall—

• give notice in writing to the person concerned, which shall set out the reasons for his proposal and shall give the person concerned a period of 21 days within which to give reasons as to why the right, entitlement or status concerned should not be revoked, and
• consider any submissions made in accordance with subparagraph (a).

An ‘abuse of rights’ shall include a marriage of convenience or civil partnership of convenience.

Marriages of convenience

The Minister, in making his or her determination of any matter relevant to EU Free Movement Regulations, may disregard a particular marriage as a factor bearing on that determination where the Minister deems or determines that marriage to be a marriage of convenience.

Where the Minister, in taking into account a marriage for the purpose of making a determination of any matter relevant to EU Free Movement Regulations, has reasonable grounds for considering that the marriage is a marriage of convenience, he or she may send a notice to the parties to the marriage requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the marriage is not a marriage of convenience.

Where a person who is subject to a  requirement above fails to provide the information concerned within the time limit specified in the relevant notice, the Minister may deem the marriage to be a marriage of convenience.

The Minister may exercise the above power in respect of a particular marriage whether or not—

• that marriage has previously been considered in determining any matter relevant to EU Free Movement Regulations or the Regulations of 2006, or
• that paragraph has previously been invoked in respect of that marriage.

Criteria

Minister shall determine whether a marriage is a marriage of convenience having regard to  any information furnished under EU Free Movement Regulations. He shall also have regard to  such of the following matters as appear to the Minister to be relevant in the circumstances:

• the nature of the ceremony on the basis of which the parties assert that they are married;
• whether the parties have been residing together as husband and wife, and, if so, the length of time during which they have so resided;
• the extent to which the parties have been sharing income and outgoings;
• the extent to which the parties have been dealing with other organs of the State or organs of any other state as a married couple;
• the nature of the relationship between the parties prior to the marriage;
• whether the parties are familiar with the other’s personal details;
• whether the parties speak a language that is understood by both of them;
• whether a sum of money or other inducement was exchanged in order for the marriage to be contracted (and, if so, whether this represented a dowry given in the case of persons from a country or society where the provision of a dowry on the occasion of marriage is a common practice);
• whether the parties have a continuing commitment to mutual emotional and financial support;
• the history of each of the parties including any evidence that either of them has previously entered into a marriage of convenience or a civil partnership of convenience;
• whether any previous conduct of either of the parties indicates that either of them has previously arranged a marriage of convenience or otherwise attempted to circumvent the immigration laws of the State or any other state;
• the immigration status of the parties in the State or in any other state;
• any information provided by an tArd-Chláraitheoir or registrar within the meaning of the Civil Registration Act 2004 ;
• any other matters which appear to the Minister to raise reasonable grounds for considering the marriage to be a marriage of convenience.

For the purposes of EU Free Movement Regulations “marriage of convenience” means a marriage contracted, whether inside or outside the State, for the sole purpose of obtaining an entitlement under—

• the Council Directive or EU Free Movement Regulations,
• any measure adopted by a Member State to transpose the Directive, or
• any law of the State concerning the entry and residence of foreign nationals in the State or the equivalent law of another state.

Civil partnerships of convenience

The Minister, in making his or her determination of any matter relevant to EU Free Movement Regulations, may disregard a particular civil partnership as a factor bearing on that determination where the Minister deems or determines that civil partnership to be a civil partnership of convenience.

Where the Minister, in taking into account a civil partnership for the purpose of making a determination of any matter relevant to EU Free Movement Regulations, has reasonable grounds for considering that the civil partnership is a civil partnership of convenience, he or she may send a notice to the parties to the civil partnership requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the civil partnership is not a civil partnership of convenience.

Where a person who is subject to a requirement fails to provide the information concerned within the time limit specified in the relevant notice, the Minister may deem the civil partnership to be a civil partnership of convenience.

The Minister may exercise the power in respect of a particular civil partnership whether or not—

• that civil partnership has previously been taken into account in determining any matter relevant to EU Free Movement Regulations or the Regulations of 2006, or
• that paragraph has previously been invoked in respect of that civil partnership.

The Minister shall determine whether a civil partnership) is a civil partnership of convenience having regard to similar factors as those above in respect of marriage.

Offences

A person who

• fails to apply for a residence card where required
• fails to surrender his or her residence card where required,
• fails to comply with various key obligations in the Regulations
• fails to comply with a removal order or a notification)
• fails to comply with an exclusion order,
• or the purposes of seeking an entitlement conferred by EU Free Movement Regulations, gives or makes any statement, declaration or information which is to his or her knowledge false or misleading in a material particular,
• for the purpose of seeking an entitlement conferred by EU Free Movement Regulations, destroys or conceals documents with intent to deceive, or
• forges, fraudulently alters, assists in forging or fraudulently altering or procures to be forged or fraudulently altered any document for reward where such documents are used or intended to be used in connection with seeking an entitlement conferred by EU Free Movement Regulations, or
• sells or supplies, or has in his or her possession for the purpose of sale or supply, forged documents, where such documents are used or intended to be used in connection with seeking an entitlement conferred by EU Free Movement Regulations,

shall be guilty of an offence.

A person who commits an offence under most of the above provisions is liable on summary conviction to a class C fine or imprisonment for a term not exceeding 3 months, or both.

A person who is found guilty of a certain offences under the Act is liable on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months. A person who is found guilty of certain further offences is liable—

• on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months, or both, or
• on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 2 years, or both.

A person who is found guilty of certain further offences is liable—

• on summary conviction to a Class A fine or imprisonment for a term not exceeding 12 months, or both, or
• on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years, or both.