Immigration at Dublin airport

(4) An immigration officer shall not, at the point of entry, place a stamp in the passport of a qualifying family member who presents to the officer a valid residence card.

17.12.2009

NOTICE TO MEMBERS

Subject: Petition 0750/2009 by Mr Benjamin Wilson (British), on the misapplication of the EC Directive 2004/38 by the immigration officers at Dublin airport

1. Summary of petition

The petitioner, British citizen married to a Singapore national who has a UK residence permit, maintains that the Irish immigration officers at Dublin airport are not familiar with EC Directive 2004/38 and do not apply it. The petitioner explains that he and his wife travelled to Ireland for a short visit. According to the petitioner, at the Dublin airport, the Irish official requested his wife to stand in the queue for non-EU citizens in order to have her passport stamped. The petitioner informed the Irish official and his superior, that in conformity with the aforementioned Directive, the passport of his wife should not be stamped, but both officials seemed unaware of these provisions and only agreed to let her enter without a stamp when he threatened with a complaint to the European Commission. The petitioner asks the European Parliament to ensure that the provisions of the EC Directive 2004/38 are known and adequately enforced in all EU Member States and suggests compiling an "immigration manual’for all EU border officers.

2. Admissibility

Declared admissible on 5 October 2009. Information requested from Commission under Rule 202(6).

3. Commission reply, received on 17 December 2009.

The petitioner, a British national, complains about allegedly unlawful treatment he was given by Irish immigration officers at Dublin airport. The Irish authorities wanted to place an entry stamp in his wife’s passport but changed their mind in the end. The petitioner considers that the Irish authorities have acted in a discourteous way and should be better trained on the Irish and Community law.

Article 18 of the EC Treaty stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. The respective limitations and conditions are to be found in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Article 5(3) of the Directive stipulates that the host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

As the petitioner pointed out, this provision is correctly transposed in the Irish law and his incident seems to be an isolated case of incorrect application of national and Community law by the Irish authorities.

Third country family members travelling with EU citizens should be entitled to use these lanes under Article 24(1) of the Directive. In the Schengen area, this is guaranteed by Article 9(2)(a) of the Schengen Borders Code[1]. Ireland is not bound by it or subject to its application.

Regarding the ‘immigration manual’ and the performance of the duties by immigration officers, there is no Community law that could apply. In relation to Schengen Member States, the Practical Handbook for Border Guards[2] was adopted in 2006. The Handbook also provides that all travellers have the right to be informed on the nature of the control and to a professional, friendly and courteous treatment, in accordance with applicable international, Community and national law. Ireland is not bound by it or subject to its application.

The Commission has no powers to intervene with the Irish authorities with regard to the operational aspects of border control, as it can be derived from Protocol (No 3) on the application of certain aspects of Article 14 of the Treaty establishing the European Community to the United Kingdom and to Ireland (1997). The alleged lack of knowledge of applicable Community law by the Irish immigration officers is regrettable but it is for Ireland to ensure that its immigration officers know national and Community law.

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CalvinKlien wrote:Myself and our son are Irish citizens and my wife (Non EU) is on stamp 4. We are coming back to Ireland few months ago and we went through the EU queue, the immigration officer stamped my wife (Non EU) passport without saying anything. It really depends who you are dealing with.

mumairsharif wrote:You need to understand the difference between a directive (guidance) and law.

gorgeous wrote:Hi guys,

I have one question. I hope you could clarify that for me.

I am a NON-EU holding a Stamp 4 EUFAM, and my partner is an EU national. We were out of the country and at the immigration port in Dublin airport, we went together through the European queue. The officer said that I should not be there since I do not hold an EU passport and I needed a stamp, so he sent me to the NON-EU queue.
Since it was taking too long at the NON-EU Q the same officer asked me to go back at the EU Q. He got my passport and said that the only possibility of going through there would be having a European passport, otherwise I should not be there.

OK, I can understand his point of view, however I was travelling with my partner, and if we are travelling together we should go through the same queue as we have always been doing it and not separately. If I was travelling alone, obviously, I would not go there.

Has anyone been through that? Am I wrong for going in the EU queue with my partner? All my friends that are married or in a civil partnership do the same and never had any problem.

Thanks!

gb1985 wrote:

gorgeous wrote:Hi guys,

I have one question. I hope you could clarify that for me.

I am a NON-EU holding a Stamp 4 EUFAM, and my partner is an EU national. We were out of the country and at the immigration port in Dublin airport, we went together through the European queue. The officer said that I should not be there since I do not hold an EU passport and I needed a stamp, so he sent me to the NON-EU queue.
Since it was taking too long at the NON-EU Q the same officer asked me to go back at the EU Q. He got my passport and said that the only possibility of going through there would be having a European passport, otherwise I should not be there.

OK, I can understand his point of view, however I was travelling with my partner, and if we are travelling together we should go through the same queue as we have always been doing it and not separately. If I was travelling alone, obviously, I would not go there.

Has anyone been through that? Am I wrong for going in the EU queue with my partner? All my friends that are married or in a civil partnership do the same and never had any problem.

Thanks!

I see this as two issues
a) Should you be in an EU or non-EU queue?
b) Should your passport have been stamped?

I believe both the questions are not interlinked. Looking at responses, it seems answer to second question is no, as irrespective of which queue you were in (I have no understanding of the issue, just read few responses on this thread).

Answer to first question, I believe, is you should be in non-eu queue. Queues are not segregated based on if your passport needs a stamp or not, but based on country of passport. In many countries, citizens of that country are given preferential treatment and they get access to faster queues. in EU, all EU citizens get this preferential treatment. US has separate queues for American Citizens and green card holders. If your husband chooses to be in slower queue, he may join you. Just my 2 cents:)

gorgeous wrote: The problem is, if he goes through NON-EU queue, they're going to tell him that he is not supposed to be there, since he is an EU.

Member States shall ensure that such lanes are clearly signposted, including where the rules relating to the use of the different lanes are waived as provided for in paragraph 4, in order to ensure optimal flow levels of persons crossing the border.

2.(a)Persons enjoying the Community right of free movement are entitled to use the lanes indicated by the sign in part A of Annex III.

(4) An immigration officer shall not, at the point of entry, place a stamp in the passport of a qualifying family member who presents to the officer a valid residence card.

Article 24

Equal treatment

1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

Article 5

Right of entry
:
3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

(3) An immigration officer may not place a stamp in the passport of a person admitted to the United Kingdom under this regulation who is not an EEA national if the person produces a residence card or permanent residence card.

A non EEA family member travelling with the EEA national may use the EU queue.

5.2 Endorsing the passports of residence card holders - Regulation 11(3)
A Border Force officer may not place a stamp in the passport of a person who holds a residence card when he is admitted to the UK, even if they do not hold an EEA family permit. Regulation 11(3) expressly prohibits an officer from endorsing the passport of a person who holds a valid residence card or permanent residence card. In addition these passengers are not required to fill in a landing card and should not be asked to do so.

Conclusions regarding the detention
26. It is a matter of profound regret that a perfectly innocent person who had every right to enter the State was instead refused entry and found herself obliged to spend the equivalent of almost three full days in custody. This must have been a humiliating and degrading experience for her.

27. While I am convinced that no personal blame should attach to either Garda McCormack and Sergeant Biggins - both of whom, it is plain, are conscientious and highly dedicated immigration officers – the same, unfortunately, cannot be said of the State and its policy with regard to the admission of the spouses of EU nationals who are third country citizens. It all too obvious that there have been significant and very serious breaches of EU law which, on the evidence, may well be continuing: the failure, for example, to have a visa processing service for such applicants, either at Dublin Airport or elsewhere within the State is openly at variance with the express language of Article 5(2) of the 2004 Directive. Nor have appropriate steps been taken to inform immigration personnel of the nature and importance of family residence cards.

28. In these circumstances, I propose to grant declarations to the effect that:

- Ms. Raducan’s detention was unlawful and represented a deprivation of her constitutional right to liberty, contrary to Article 40.4.1 of the Constitution;

- By refusing to admit Ms. Raducan, and, in particular, by failing to offer her a visa processing facility within the State, the State failed in its obligations to comply with Article 5(2) and Article 5(4) of the 2004 Directive.

29. In the wake of those declarations, I should record that I invited Mr. Collins SC to apply to amend his pleadings to include a claim for damages for breach of constitutional rights and of Union law. Mr. Barron SC for the State very fairly acknowledged that the respondents would not oppose this application and, indeed, would submit to judgment without further argument on the point.

NOTICE TO MEMBERS
Subject: Petition No 2506/2013 by N.W. (Irish) on free movement of EU citizens and
their family members
1.
Summary of petition
The petitioner who is an EU national is married to a non-EU national. Upon their arrival at the
Dublin airport his wife (non-EU citizen, holding a non-EU passport) had to go to the line for
non EU citizens and wait there for almost an hour to have her passport stamped, to a distress
of their 18 months old baby. The petitioner believes his rights and those of his wife have been
breached. He believes that current processing of persons both EU and non-EU through the
Irish Immigration system needs to be amended.
2.
Admissibility
Declared admissible on 24 October 2014. Information requested from Commission under
Rule 216(6).
3.
Commission reply, received on 30 January 2015
Article 21(1) of the Treaty on the Functioning of the European Union stipulates that every
citizen of the Union shall have the right to move and reside freely within the territory of the
Member States, subject to the limitations and conditions laid down in the Treaties and by the
measures adopted to give them effect. The respective limitations and conditions are to be
found in Directive 2004/38/EC on the right of citizens of the Union and their family members
to move and reside freely within the territory of the Member States (hereafter: the Directive).
Provided the conditions of the Directive are met, EU citizens have the right to enter the host
Member State, and their family members - irrespective of their nationality - have the same
right.
The fundamental right of free movement guaranteed by EU law to EU citizens and their
family members is the most cherished right in the European Union and is considered as
practically synonymous with Union citizenship. EU citizens feel understandably distressed
when facing obstacles and difficulties where there should be none.
Setting up dedicated queues for EU citizens and their family members can speed up the
process of border-crossing as EU citizens and their family members enjoy legally distinct
rights in comparison with other non-EU travellers.
The Directive, however, does not lay down specific rules obliging Member States to set up at
their borders queues reserved for EU citizens and their family members. For air borders, such
rules are contained in Article 9(2)(a) of the Schengen Borders Code1, by which Ireland is
however not bound and which does not apply to Ireland2.

Conclusion
While it is desirable that Ireland set up dedicated queues for EU citizens and their non-EU
family members, Ireland is not under an EU law obligation to do so. It is, nevertheless,
incumbent upon the Irish authorities to take the measures necessary to facilitate the
achievement of the European Union's tasks, including those related to the right of EU citizens
to move and reside freely.

treefriend wrote:Has anyone recently experienced ordeal by immigration officials?

I travel to London a lot and overtime I get questions in very judgemental way, more likely interrogation way. Immigration officer crossed all limit today and made me to wait for 2 hours because I did not know my wife number by heart.They called my wife and let me go after a lot of arguments.

I am writing a complain letter to INIS, as I travel every week to London and unable to handle this indiscriminate treatment which result mostly due to my and wife nationality. Once immigration officer even made a joke about how people of my nationality getting married girls of one particular nationalities?

Please share your experience here if you have any.

Thanks

gorgeous wrote:HI Coketero,

Which line do you usually take, holding a Stamp 4 Eufam?