The McCarthy case was heard on Thursday but the judgement has not been made yet and there has been no indication as to when it will be made, I am hoping it will be in the next few weeks.
You do need to be exercising treaty rights to obtain a eea family permit for your family member. You need to be either working, studying with sufficient resources (no public funds) and health insurance for both of you or self employed.
If you were to apply for eea family permit it will probably be refused or pending the outcome of the McCarthy case. The 2nd solicitor was right, you do not have to have moved from one member state to another in order to avail of the benefits of the directive.
I would say the first thing you need to do is apply for a permanent residence certificate along with your Irish passport. You will need to show that you have been exercising treaty rights for the last 5 years (school, working, college etc) and show evidence of your addresses by way of utility bills. Once this is obtained, they cannot refuse the eea family permit as they have already recognised your rights under the directive.
My situation is similar to yours but the other way round, live in Ireland, have Irish and British citizenship. Never lived anywhere but Ireland and I applied for the permanent residence certificate and it was approved. This shows that the Irish immigration recognise my rights as a British national in Ireland. I then applied for residence card for my partner and it was refused on the basis of my Irish nationality.
See my thread Partners EU1 application refused on basis of dual citizen!!!
I am now bringing High Court Judicial review proceedings against the DOJ in Ireland and our case is very strong because they have already recognised my rights by issuing me with a permanent residence certificate which states that I am a British national living in Ireland with the right of permanent residency because I have exercised treaty rights for the last 5 years (mostly school, college and a few part time jobs).
The different thing about the McCarthy, is that she might not be a qualified person under the directive 2004/38/EC Free Movement of Persons because she has not exercised treaty rights for a while and is on benefits.
Also, her case in the ECJ is that she is taking the Home Office to court to get her permanent residence certificate, because she applied for things all wrong. She first applied for eea family permit, it was refused and then she applied for PRC to prove her entitlements but the Home Office copped on and refused it.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton