Regulation 3(2) of the Regulations referred to by the Deputy states:
These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is:—
(a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member, or
(b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State.
Each application by a non-EEA family member for residence under the Regulations referred to is determined on its facts, including in relation to the criteria above. Where there is no evidence of lawful residence in another EU Member State the Regulations may be deemed not to apply to the person. Where the Regulations do not apply to a non-EEA national it would follow that a review under the Regulations is not available.
However, while no formal appeal mechanism exists, it is possible for the person concerned to submit any additional information they have showing lawful residence in another EU Member State and this will be considered. Even in respect of non-EEA family members to whom the Regulations do not apply, they will have their cases reviewed and determined under national immigration measures as to their right to remain in the State.
