Complaints against Ireland concerning 2004/38/EC - templates

[ca.funke]

This is a list of current infringements by Ireland against 2004/38/EC and examples of possible complaints to be lodged in their regard.

Please feel free to lodge your own complaints copying and modifying from this list as appropriate and/or add your own complaints for better templates...

So far the following complaints are listed below...

• Refusing 4EUFam-applications before being resident for 3 months
• Fingerprinting non-EU family members of EU citizens
• Visiting Ireland while being a non-EU family member of an EU-citizen. (=NOT relevant for people resident in Ireland)
• No work-permit while waiting for 4EUFam / EU1

[ca.funke]

Refusing 4EUFam-applications before being resident for 3 months

---------- Forwarded message ----------
From: me
Date: Thu, Jul 3, 2008 at 7:07 PM
Subject: Complaint against the Republic of Ireland
To: European Commission sg-plaintes@ec.europa.eu , Solvit Ireland solvit@entemp.ie

Dear Sir or Madam,

I hereby lodge a complaint against the Republic of Ireland.

Directive 2004/38/EC (available >>here<<), article 9, sections 2 and 3, state:

2. The deadline for submitting the residence card application
may not be less than three months from the date of arrival.

3. Failure to comply with the requirement to apply for a
residence card may make the person concerned liable to
proportionate and non-discriminatory sanctions.

The intention of this clause is, that every relevant foreigner should apply for the mentioned residence card as soon as possible. Member States may impose a penalty for foreigners that fail to apply. The deadline for penalties imposed for NOT applying may not be less than 3 months.


In Ireland, directive 2004/38/EC is implemented through "STATUTORY INSTRUMENT S.I. No. 656 of 2006" (available >>here<<)

Section 7(1)(a) states:

A family member of a Union citizen who is not a national of a Member State and who has
been resident in the State for not less than 3 months shall apply to the Minister for a
residence card.

Ireland turns the intention of the directive upside down, trying to deter applications by only allowing them after 3 months of residency at the earliest.

Applications filed before being resident for at least 3 months are refused, citing this piece of legislation, which is clearly contradicting 2004/38/EC.

Please take appropriate measures to make Ireland comply with directive 2004/38/EC.


For my personal case:

• My (family member) arrived in Ireland on (Date)
• We applied for a residence card on (Date)
• We were refused residence according to the above on (date)
• As a consequence my (relation) is currently ILLEGALLY prevented from seeking employment.

Thanks and regards, (...)

[ca.funke]

Fingerprinting non-EU family members of EU citizens

---------- Forwarded message ----------
From: me
Date: Thu, Sep 4, 2008 at 11:06 AM
Subject: Complaint against the Republic of Ireland
To: European Commission sg-plaintes@ec.europa.eu
Cc: Solvit Ireland solvit@entemp.ie

Dear Sir or Madam,

the Republic of Ireland is in breach of Directive 2004/38/EC in yet a new way:

When a residence-card as per Article 10 of the Directive is issued, the authorities now take fingerprints of the applicants and store them in unknown locations/databases for unknown/unspecified reasons.

I believe this procedure to be in contradiction of Article 10, section 2, which gives an exhaustive list of requirements that applicants have to provide. Fingerprints are not listed and may therefore not be required.

Please investigate whether this procedure breaks EU-law.


Thanks and regards from Dublin,
(...)

[ca.funke]

Visiting Ireland while being a non-EU family member of an EU-citizen. (=NOT relevant for people resident in Ireland)

---------- Forwarded message ----------
From: me
Date: Sun, Jun 22, 2008 at 1:07 PM
Subject: Complaint against the Republic of Ireland
To: European Commission sg-plaintes@ec.europa.eu
Cc: Solvit Ireland solvit@entemp.ie

Dear Sir or Madam,

I hereby lodge a complaint against the Republic of Ireland.

This complaint comprises two items:

Item 1:
(This is for people resident outside the EU - or not (yet) in possession of a residence-card according to Article 10)

Directive 2004/38/EC (available >>here<<), article 5, section 2, states:

Family members who are not nationals of a Member State
shall only be required to have an entry visa in accordance with
Regulation (EC) No 539/2001 or, where appropriate, with
national law.
(...)
Member States shall grant such persons every facility to obtain
the necessary visas. Such visas shall be issued free of charge as
soon as possible and on the basis of an accelerated procedure.

The comissions' website (>>here<<) clarifies this as follows:

YOU MIGHT BE REQUIRED TO HAVE AN ENTRY VISA

Family members holding nationality of certain countries[3], which are subject to visa obligation, may be required to have an entry visa.

It is not allowed to require any other type of visa, such as residence or family reunification visa.
(...)

(...)

The Member State of destination should grant you every facility to obtain the necessary visa, which shall be issued free of charge as soon as possible and on the basis of an accelerated procedure. (...)

As your right of entry is derived from your family ties with a Union citizen, all the Member State consular officials can ask you to produce for the visa application is your passport and a document establishing the family ties with a Union citizen, such as marriage or birth certificate and proof of dependence, where applicable.

As a summary, when an EU-citizen wants to visit Ireland together with his/her NON-EU family member, all that Ireland is allowed to demand before BEING OBLIGED to issue a visa, is:

• both passports AND
• the marriage certificate

The Republic of Ireland does not follow this interpretation. As stated on the website of the relevant Irish authority (link >>here<<), an EU-citizen who wants to visit Ireland together with his/her NON-EU spouse has to produce the following papers, before Ireland will deal with the visa-application:

• Application Form
• Passport
• Valid Residence Card for EU State
• Marriage Certificate – evidence (apostilled document) that marriage has been registered in applicant's country of origin/residence
• Birth Certificate (long form) for children under 21 years, parental consent, national identity card (signed if required)
• Evidence that the EU Citizen spouse is exercising their EU Treaty Rights by being employed/self employed in the State or engaged in a valid vocational training programme or has sufficient financial resources and comprehensive sickness insurance cover
• Evidence that the applicant is accompanying the EU Citizen to Ireland – e.g. return airline/ferry tickets in both names

The additionally demanded papers ignore the spirit of the directive, and directly contradict what is stated on the commissions' website, as cited above.


Item 2:
(This is for people resident in the EU while in possession of a residence-card according to Article 10)

The same directive, 2004/38/EC (available >>here<<), article 5, section 2, states:

Family members who are not nationals of a Member State
shall only be required to have an entry visa
(...)
For the purposes of this Directive, possession of
the valid residence card referred to in Article 10 shall exempt
such family members from the visa requirement.
(...)

The comissions' website clarifies this part as follows:

YOU MIGHT BE REQUIRED TO HAVE AN ENTRY VISA

Family members holding nationality of certain countries[3], which are subject to visa obligation, may be required to have an entry visa.

(...)

Possession of the valid residence card, referred to in the relevant fact sheet, issued by any Member State, exempts you from the visa obligation not only in the Member State which issued the residence card, but in all Member States.
(...)

As a summary, non-EU family members of EU citizens, who are in posession

• of a residence-card
• that is issued according to this law
• by any EU-state other than Ireland

are allowed to enter Ireland without an additional visa.

The Republic of Ireland does not follow this interpretation. The website of the relevant Irish authority (>>here<<) does not state this fact at all.

Instead, Ireland insists that the visa, as described, is necessary for any visit to Ireland, regardless of personal circumstances.

Thanks for dealing with this as a grave matter.

Thanks and regards from Dublin, (...)

[ca.funke]

No work-permit while waiting for 4EUFam / EU1

---------- Forwarded message ----------
From: me
Date: send it soon!
Subject: Complaint against the Republic of Ireland
To: European Commission sg-plaintes@ec.europa.eu
Cc: Solvit Ireland solvit@entemp.ie

Dear Madam or Sir,

my (family relation) applied for EU1/EU4Fam-card, which is the Irish process according to Directive 2004/38/EC, Articel 10 to obtain a "residence-card for family members of EU citizens".

My (family relation) is currently not allowed to work, as he was (state the reason, for example "issued with stamp3" etc...)

I believe this to be illegal because of the following articles of the mentioned directive:

Article 23
Related rights

Irrespective of nationality, the family members of a Union
citizen who have the right of residence or the right of perma-
nent residence in a Member State shall be entitled to take up
employment or self-employment there.

(=the right to work is immediately derived from being a family member, and has nothing to do with any application, approved or not, or any cards etc... The EU4Fam-card is barely an easy way to prove that the right is actually possessed)

This thought seems to be confirmed through the following:

Article 25
General provisions concerning residence documents
1. Possession of a registration certificate as referred to in
Article 8, of a document certifying permanent residence, of a
certificate attesting submission of an application for a family
member residence card, of a residence card or of a permanent
residence card, may under no circumstances be made a precon-
dition for the exercise of a right or the completion of an
administrative formality, as entitlement to rights may be
attested by any other means of proof.

As my (family relation) is entitled to a residence-card as per above, the right to work is automatic.

I feel I am currently illegally deprived from this right.

Thanks for taking appropriate action in this regard.