Stamp 3 - While waiting for E.U1

[ca.funke]

Hi all,

Thinking about the original thread-topic

"Stamp 3 - While waiting for E.U.1"

the following occurred to me, and I'd love to hear some opinions:

Whoever is entitled to EU1/EU4Fam may work immediately upon arrival in Ireland. Possession of the actual card is NOT necessary! (At least according to the much discussed Directive 2004/38/EC)

GNIB/DoJ/INIS's attempts to prevent people from working through

• issuing Stamp 3 and/or
• endorsing a passport with stamps such as "not permitted to take up employment" and/or
• stalling EU1/EU4Fam-applications as long as legally possible (or beyond that)

are possibly ILLEGAL!

What makes me think so are the following two paragraphs of 2004/38/EC:

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.

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.

GNIB/DoJ/INIS should, IMHO, urge people to apply for EU1/EU4Fam as early as possible. Scam-applications can then be filtered as early as possible, and of course falsely issued permits can (and should) be revoked, if proven "marriages of convenience".

However, the general stalling-tactics that affect all applicants are not helpful and may be, as described above, ILLEGAL.

If the above proves to be legally correct (I'm not a legal expert), I would advise everyone in this situation to do the following two things:

• Contact Solvit (solvit@entemp.ie), explaining ones personal situation and the law, asking them to contact GNIB/DoJ/INIS telling them that their actions are illegal.
• Lodging an official complaint about this with the European commission (sg-plaintes@ec.europa.eu).

If appropriate for your situation it may also be worth claiming compensation from the state for lost income. This would, however, be a major case and the state will fight against this to the end.

[swann]

thank you ca.funke, we are lodging our complaints with the EU commision this week. per advice of First-Class Moron, i'm also sending my EU1 application again.

[ca.funke]

I asked Solvit what they think of Stamp 3 while waiting for 4EUFam

My questions were along the lines of >>this<< reasoning.

Solvit's reply was:

---------- Forwarded message ----------
From: solvit@entemp.ie
Date: Fri, Aug 22, 2008 at 5:18 PM
Subject: Re: EU Treaty application
To: Christian

Dear Mr,

The Irish SOLVIT Centre are not experts in Immigration law so we cannot give a legal response to your questions. However, previously the Department of Justice clarified the issues of non-EU spouses of EU citizen not being permitted to work while their application for residency is pending.

The Department of Justice explained that a third country national spouse of an EU national is dependent on their 'eligible' EU national spouse to assert their EU Treaty Rights. It is not enough for a third country national spouse to state that they are eligible by showing a marriage certificate at the point of entry. To obtain EU Treaty Rights, both the non-EU spouse and the EU national must engage in an administrative process to establish the 'acquired rights' before they can be acted on. To do so, the couple must go through the administrative process in the host Member State. Where an EU national wants his/her third country national spouse to be a beneficiary of Directive 2004/38/EC, the EU national has to provide evidence that he/she meets the relevant criteria.

On arrival in the State, a third country national spouse/partner of an EU national receives a stamp 3 in their passport at the port of entry by the local Immigration Officer. A stamp 3 entitles the bearer to visitor conditions only. In the context of EU Treaty Rights (i.e. the intention to reside in the State for more than 3 months) stamp 3 conditions apply until such time as the decision on the EU Treaty Rights application of the third country national is issued (within 6 months from the receipt of the correctly completed application). If the third country national is successful and is issued with an EUFAM residence card, their status will be amended in their passport to a Stamp 4, which allows the applicant to work/engage in business in the State. If the applicant is refused EU Treaty Rights, the application may be considered under national provisions.

(...)

If this would still apply, it would be a direct contradiction to the following:

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.

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.