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Court case - Directive/2004/38/EC

Forum to discuss all things Blarney | Ireland immigration

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push, Administrator

Static
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Post by Static » Mon Apr 02, 2007 3:10 pm

efrenirvana wrote:it looks complicated, i was goin to do that way before moving here but i was told by the consulate, that as i was a non visa required i just had to arrive in ireland and start my application from inside of the country with the eu1 form

i wish to know why they gave 1 year stam in the zen case and they totaly reject the aplication in dsb85 case, for me look similar cases, or its that zen use some legal help to put pressure on it?
It's exactly what I was told. I was more than happy to apply for spouse visa first but got told it's not necessary as I don't require a visa to enter Ireland. I would also love to know why some are getting this right and others not. My application is now 6 months old as well.....

scrudu
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Post by scrudu » Mon Apr 02, 2007 3:21 pm

Didn't Zen63 say that his application was granted, but not in respect to the Directive ??? http://www.immigrationboards.com/viewto ... c&start=20
The letter from the Justice Department seems to indicate that we do not have a residence card - and that one can only be issued in the event that my spouse was already resident in another EU state. It just seems to be permission to remain for another year - with a GNIB card.
It seems that the Justice Dept have taken the following lines from the European Communities Regulations 2006 http://www.justice.ie/80256E010039E882/ ... of2006.pdf

(2) 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.

And saying that becuase my spouse resided outside of the EU at the time of our marriage and prior to our entry into the state - that she cannot avail of the provisions of the European Directive 2004/38/EC .

scrudu
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Post by scrudu » Mon Apr 02, 2007 3:25 pm

Babsie: the EU1 application is goverened by EU law, namely Directive 2004/38/EC which has been implemented in Irish law as S.I. No. 226 of 2006 - European Communities (Free Movement of Persons) Regulations 2006.

An application for a D-Spouse visa (& LRT & Permission to Remain) are covered by Irish law. Actually I don't know where that law is set down, but it is covered by Irish Immigration process (see doc link in last post), rather than EU defined process.

Read also: http://www.justice.ie/80256E010039C5AF/ ... eeMvmt.pdf
This says that according this same EU law, all EU citizens and their families may apply for Permanent residency in Ireland after 5 years continuous residence in Ireland. Accordingly you could apply to stay under Form EU2 (application for perm residency - EU citizen resident in Ireland for more than 5 years). Your husband could apply to stay under EU3 (application for perm residency - non-EU family member in Ireland for more than 5 years).
Last edited by scrudu on Mon Apr 02, 2007 3:32 pm, edited 2 times in total.

Static
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Post by Static » Mon Apr 02, 2007 3:28 pm

I am, once again, thoroughly confused... Does this mean that you might be allowed to stay regardless of whether you resided inside the EU before arriving in Ireland??

Static
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Post by Static » Mon Apr 02, 2007 3:29 pm

Does anybody know how to go through the normal immigration process as opposed to the EU directive freedom of movement thingie (EU 1 form) ?

scrudu
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Post by scrudu » Mon Apr 02, 2007 3:39 pm

Static: That's what I was trying to describe with the D-Spouse visa application.

As for your other question. According to the current Irish interpretation of the Directive, you will NOT be granted residency under the EU1 application, unless you and your spouse previously legally resided elsewhere in the EU.

My point is that prior to the introduction of this EU legislation, it was legally possible for non-EU spouses to join their EU spouses in Ireland (irregardless of whether they lived in the EU or not). I am suggesting that they "may" be able to apply by a different process (i.e. the one that non-EU spouses of Irish citizens currently use). I have been suggesting that people in this situation contact the DOJ to ask, as the current Irish interpretation of the Directive does not apply to them.

Static
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Post by Static » Mon Apr 02, 2007 3:43 pm

Thanks Scrudu.. that would then entail going back to my country to apply for a D-spouse visa if I'm correct? When did this legislation take effect? As for contacting the DOJ. Every time I managed to get through they have given me contradictory information. I'm not ringing them anymore. It just further depresses me. Thanks for the help Scrudu.

brownbonno
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Post by brownbonno » Mon Apr 02, 2007 3:47 pm

scrudu wrote:Static: That's what I was trying to describe with the D-Spouse visa application.

As for your other question. According to the current Irish interpretation of the Directive, you will NOT be granted residency under the EU1 application, unless you and your spouse previously legally resided elsewhere in the EU.

My point is that prior to the introduction of this EU legislation, it was legally possible for non-EU spouses to join their EU spouses in Ireland (irregardless of whether they lived in the EU or not). I am suggesting that they "may" be able to apply by a different process (i.e. the one that non-EU spouses of Irish citizens currently use). I have been suggesting that people in this situation contact the DOJ to ask, as the current Irish interpretation of the Directive does not apply to them.
Suggestions are worth given,but before taking actions on this suggestions,expert opinion should be sorted.To avoid davastating consequences.
Knowledge is Power

scrudu
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Post by scrudu » Mon Apr 02, 2007 3:48 pm

Static: Unfortunately yes it would :( The D-Spouse visa application procedure has been round for a long time. As I said, I haven't been able to find the governing legislation, only the application procedure, and the rest of the info I picked up from our experience of it.

As brownbonno (and I previously in this post) stated, this is just a suggestion. The DOJ doc's said this replaced all previous legislation/procedures for dealing with non-EU spouses of EU citizens. But as the Irish interpretation of the Directive leaves many people out (e.g. babsie and others who did not previously reside in the EU) I think it's worth pursuing the DOJ so that they explain which procedure to follow!

I also found the same when I was going through our nightmare of an immigration process. Another helpful source is http://www.immigrantcouncil.ie, but any advice they give is really based on the info they receive from DOJ and from customers of the DOJ (immigrants). It's good to have a place to vent though, and they have done a lot of work in the past to highlight such issues with politicians. It's worth getting in touch with them to have your case recorded. They may also be able to give any updates! Best of luck with it!

archigabe
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Is the Irish Government in Violation of European Laws?

Post by archigabe » Tue Apr 03, 2007 9:51 am

So far I have found three regulations that pertain to family members of E.U citizens...Article 9&10 of 2004/58/Ec and Article 9&10 of 2004/38/EC are identical and do not specify any conditions such as entry from another E.U country in their requirement for issuing Residency Cards.

Only the ''STATUTORY INSTRUMENT S.I. No. 226 of 2006
European Communities (Free Movement of Persons) Regulations 2006
Published by the Stationery Office, Dublin''
specifies entry from another E.U country.I believe the Irish government has added this specific clause to the E.U regulations, and therefore they have violated E.U directives by adding additional clauses to the E.U directive.Maybe we can take this thing to European court saying Irish government is placing undue hardship to families and is in violation of E.U regulation by adding unreasonable and unjustified regulations.

What do you do if the European partner has been living in Ireland for more than a few years?Are they supposed to go back to their home countries to start over? This Irish directive is contrary to the European free movement regulations and a violation of fundamental human rights...

archigabe
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Post by archigabe » Tue Apr 03, 2007 9:56 am

Sorry forgot to mention that I believe that ''STATUTORY INSTRUMENT S.I. No. 226 of 2006 European Communities (Free Movement of Persons)Regulations 2006
Published by the Stationery Office, Dublin '' is not the original European Community law, but rather the Irish interpretation of it...2004/38/EC and 2004/58/Ec are the original European Free movement regulations.

jack_in_the box
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Post by jack_in_the box » Tue Apr 03, 2007 3:19 pm

scrudu wrote:As brownbonno (and I previously in this post) stated, this is just a suggestion. The DOJ doc's said this replaced all previous legislation/procedures for dealing with non-EU spouses of EU citizens. But as the Irish interpretation of the Directive leaves many people out (e.g. babsie and others who did not previously reside in the EU) I think it's worth pursuing the DOJ so that they explain which procedure to follow!
Right , but Babsie did previously reside in the EU. She has lived in the EU all her life. Her husband (me) has been living in the EU for nearly 6 years now - it just happens that I have been living here in Ireland on a workpermit.

I'm still not really sure where this leaves us. The EU directive in question states that we needed to live in ANOTHER EU country before coming to Ireland. But if we both LIVE here for so long, how the heck can one be expected to have lived some place else before.

Surely it's way more likely, that seeing as I am living in the EU, the chances of me meeting & marrying & person from the EU, is a lot greater than me marrying a non EU person.

I feel that this is such discrimination. In stead of life being made easier for non EU nationals in this situation, the rights of the EU national are somehow being reduced to that of the non EU national.

joesoap101
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Post by joesoap101 » Tue Apr 03, 2007 8:29 pm

scrudu wrote:http://www.immigrantcouncil.ie, but any advice they give is really based on the info they receive from DOJ and from customers of the DOJ (immigrants). It's good to have a place to vent though, and they have done a lot of work in the past to highlight such issues with politicians. It's worth getting in touch with them to have your case recorded. They may also be able to give any updates! Best of luck with it!
It would be interesting to know whether the Immigrant Council has actually ever achieved anything and who provides their funding.

zen63
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Post by zen63 » Thu Apr 05, 2007 11:40 am

Update from SOLVIT:

Code: Select all

The Irish SOLVIT Centre have received confirmation from the Department of Justice, Equality and Law Reform that a decision is due on the High Court case on the 27th April 2007. 

The Department of Justice, Equality and Law Reform have also informed us that, a decision was made within the Department of Justice, that all cases should be examined under the provisions of the current Irish Regulation 3(2) of S.I No. 656 of 2006, as it continues to have effect and must therefore be complied with. 

The Irish SOLVIT Centre have been informed by another client who received a letter from the Department of Justice which essentially refused residency for the applicant but also states that "Your application might be eligible for reconsideration pending the outcome of the above mentioned High Court proceedings." 

The Irish SOLVIT Centre await the decision on this court case and following the decision we will be in a better position to advise on your case. 

brownbonno
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Post by brownbonno » Thu Apr 05, 2007 12:26 pm

This is a clear indication of errors in the the transposition of Directives.
People should contact their MEPs either by email or otherwise.
http://www.europarl.europa.eu/members/p ... anguage=EN

They should be able to give an understanding of Artilce 40 of DIRECTIVE 2004/38/EC in relation to the Irish 3(2).
Article 40
Transposition
1. Member States shall bring into force the
laws, regulations and administrative
provisions necessary to comply with this
Directive by 30 April 2006.
When Member States adopt those
measures, they shall contain a reference to
this Directive or shall be accompanied by
such a reference on the occasion of their
official publication. The methods of
making such reference shall be laid down
by the Member States.
2. Member States shall communicate to the
Commission the text of the provisions of
domestic law which they adopt in the field
governed by this Directive together with a
table showing how the provisions of this
Directive correspond to the national
provisions adopted.
Knowledge is Power

shellylooney
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my 2nd visa application was still rejected again

Post by shellylooney » Thu Apr 05, 2007 1:31 pm

scrudu wrote:If you check out any of the posts from Irish citizens or spouses of Irish citizens you'll see that the same checks/restrictors based on "marriages of convenience" also apply! The only difference is there is no Law or Directive which governs how non-EU spouses of Irish citizens should be handled, hence every application made is a bit of a "hit n miss" procedure!

Check out shellylooney's case for an example of a non-EU (phillipines) spouse of an Irish citizen whose application was refused on the basis of "lack of proof of relationship".

I agree the rights of non-Irish and their families seem to be down the list of priorities for many politicans (as do non-Irish spouses of Irish citizens). It's worth bringing it up as a topic with politians when they canvas at your door over the coming months!
Hi Scrudu,

I have my latest update regarding my visa application. As you all know my husbands appeal was still rejected but the letter from Visa section told us to meet again for the 3rd time so that they will look favorably in my 2nd application.

So what my husband did he was here in the Philippines this January for his 3rd time visit. Then after he gone home I have all the evidences from our 3rd meet. I applied again for a new application. Its been 3rd week already since I lodged my papers so husband follow-up in Dublin for the update of my papers. So SAD again that my husband told me they still refused my visa 2nd time for the same grounds.

Im expecting all was ok now bec its in their letter say that they will look favorably in my 2nd application. I don't know what else they like to see or to proved that this marriage was true.

Looking forward for your points of view.

scrudu
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Post by scrudu » Thu Apr 05, 2007 4:48 pm

Hi Shelly,

I'm not sure I understand you correctly. Have they now refused your latest D-Spouse Visa application? If I can piece together correctly, your history is as follows:

Apr 2006 Your husband visited you in Philipines
Jul 2006 Your husband visited you in Philipines
Aug 2006 you two married in Phillipines
??? 2006 Submitted Application 1 (D Spouse Visa)
Oct 2006 Application 1 (D Spouse Visa) - Refused due to RH-Relationship History
??? 2006 Submitted Appeal of Decision (D Spouse Visa)
Dec 2006 Appeal of Decision (D Spouse Visa) - Refused due to RH-Relationship History
Jan 2007 Husband visited you in the Phillipines again
Mar 2007 Submitted Application 2 (D Spouse Visa)
Apr 2006 Application 2 (D Spouse Visa) - Refused due to RH-Relationship History

appleAngel88 said that she had the same situation as you, but they appealed again and enlisted the help of her husband local TD (Member of Parliament). It looks like it may be time for your husband to get someone to help him out further.

You got help from a solicitor already right?

shellylooney
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Post by shellylooney » Thu Apr 05, 2007 10:18 pm

scrudu wrote:Hi Shelly,

I'm not sure I understand you correctly. Have they now refused your latest D-Spouse Visa application? If I can piece together correctly, your history is as follows:

Apr 2006 Your husband visited you in Philipines
Jul 2006 Your husband visited you in Philipines
Aug 2006 you two married in Phillipines
Aug 2006 Submitted Application 1 (D Spouse Visa)
Oct 2006 Application 1 (D Spouse Visa) - Refused due to RH-Relationship History
Nov 2006 Submitted Appeal of Decision (D Spouse Visa)
Dec 2006 Appeal of Decision (D Spouse Visa) - Refused due to RH-Relationship History
Jan 2007 Husband visited you in the Phillipines again
Mar 2007 Submitted Application 2 (D Spouse Visa)
Apr 2006 Application 2 (D Spouse Visa) - Refused due to RH-Relationship History

appleAngel88 said that she had the same situation as you, but they appealed again and enlisted the help of her husband local TD (Member of Parliament). It looks like it may be time for your husband to get someone to help him out further.

You got help from a solicitor already right?
Hi scrudu,

Yes, they refused again my latest D-spouse visa application. We have a solicitor working out of this.

Was appleAngel88 applied twice also?Did she get her visa now?

Were all very upset but we dont lose hope, we fight for our right and our love.

scrudu
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Post by scrudu » Fri Apr 06, 2007 8:47 am

Hi Shelly,

Read post http://www.immigrationboards.com/viewto ... ght=#76084 for appleAngel88's comments. She said that she was in the same situation but got her visa on appeal.

It looks like you really only have 2 choices. The first is to appeal the decision again, including all the proof of the validity of your relationship that you can into this appeal. I know you did this already, but obviously they are looking for something more. Try to look at the application from their point of view and see any holes. Can you include phone records to show you are in constant contact? Can your husband get in touch with his local TD to add weight to your application?

The second option is to apply for a Tourist Visa to visit Ireland and your husband initially. From what I know, I dont think you can apply for a change of Visa to a D-Spouse visa while here (applicant must be outside of country), but after returning to the Phillipines after this visit, your next D-Spouse Visa application may be more successful. I remember we were told by helpdesk at the DOJ that any visits to Ireland before applying for a spousal visa affect your application favourably.

Has your solicitor given you any advice on this?

shellylooney
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Post by shellylooney » Fri Apr 06, 2007 9:56 am

scrudu wrote:
Has your solicitor given you any advice on this?
Hi Scrudu,

My husband said that he will leave everything to his solicitor. His solicitor dont advise us for a tourist visa but instead he say he will bring this up to higher court. As of now, we wait until next week for his solicitors action on this.

As of now i dont really know what else should i add more evidence if we made an appeal bec everything is in there in my application.

Its fine w/ me to go in 2nd option having a Tourist visa if that can helps. As long as we can be together again w/ my husband.

I will discuss further w/ my husband and keep you posted.

brownbonno
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Court case - Directive/2004/38/EC

Post by brownbonno » Fri Apr 06, 2007 10:43 am

This thread is for- Court case - Directive/2004/38/EC.
Please post in a correct thread to avoid derails.
Knowledge is Power

brownbonno
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Post by brownbonno » Fri Apr 06, 2007 11:21 am

Administrator,

Please help post to the appropriate thread to enable get a meaning to this thread/discussions.
Knowledge is Power

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