Partners EU1 application refused on basis of dual citizen!!!

http://www.irishtimes.com/newspaper/ire ... 62641.html

[quote]
Non-Irish people in civil unions to get same rights

Wed, Apr 13, 2011

THE MINISTER for Justice and Equality says that non-Irish persons in civil partnerships with Irish citizens will receive the same citizenship rights as those in married couples.

Alan Shatter said, in response to a parliamentary question, that it was his intention that “civil partnerships registered in Ireland or recognised by Irish law, be treated the same as marriagesâ€

[quote="acme4242"]http://www.irishtimes.com/newspaper/ire ... 62641.html

[quote]
Non-Irish people in civil unions to get same rights

Wed, Apr 13, 2011

THE MINISTER for Justice and Equality says that non-Irish persons in civil partnerships with Irish citizens will receive the same citizenship rights as those in married couples.

Alan Shatter said, in response to a parliamentary question, that it was his intention that “civil partnerships registered in Ireland or recognised by Irish law, be treated the same as marriagesâ€

This is quite refreshing indeed. I knew anything else is bound to be better than the shambles of the previous government.

Ok, so from the below email, it seems civil partnerships are NOT available to couples of the opposite sex.

[quote]
Ms XXXX XXXXXX

13 April 2011

Dear Ms XXXXXX

The Minister has asked me to thank you for your e-mail dated 11 April 2011,
regarding the Civil Partnership and Certain Rights and Obligations of
Cohabitants Act 2010.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act
2010 gives same-sex couples the option of registering in a civil
partnership, conferring a range of rights and obligations, including in
relation to succession, shared home and financial matters. Civil partners
are treated in the same way as spouses for the purposes of the tax and
social welfare codes.

Civil Partnership is not available to opposite-sex cohabiting couples, as
they can avail of marriage.

The advice available to the Minister indicates that making civil
partnership available to opposite-sex couples would break the Government’s
constitutional obligation to “guard with special care the institution of
marriage [……] and to protect it against attackâ€

monife,it does not matter. de facto relationships are recognised for immigration.it wiill certainly be the case for this minister.he is one of the country's most immenient family law lawyers

Thanks Walrusgumble.

Just a waiting game now...

judgement has arrived

JUDGMENT OF THE COURT (Third Chamber)

5 May 2011 (*)

(Freedom of movement for persons – Article 21 TFEU – Directive 2004/38/EC – ‘Beneficiary’ – Article 3(1) – National who has never made use of his right of free movement and has always resided in the Member State of his nationality – Effect of being a national of another Member State – Purely internal situation)

In Case C‑434/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Supreme Court of the United Kingdom, formerly the House of Lords (United Kingdom), made by decision of 5 May 2009, received at the Court on 5 November 2009, in the proceedings

Shirley McCarthy

v

Secretary of State for the Home Department,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, D. Šváby, R. Silva de Lapuerta (Rapporteur), E. Juhász and J. Malenovský, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 28 October 2010,

after considering the observations submitted on behalf of:

– Mrs McCarthy, by S. Cox, Barrister, and K. Lewis, Solicitor,

– the United Kingdom Government, by S. Ossowski, acting as Agent, and by T. Ward, Barrister,

– the Danish Government, by C. Vang, acting as Agent,

– the Estonian Government, by M. Linntam, acting as Agent,

– Ireland, by D. O’Hagan and D. Conlan Smyth, acting as Agents, and by B. Lennon, Barrister,

– the Netherlands Government, by C. Wissels and M. de Ree, acting as Agents,

– the European Commission, by D. Maidani and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 November 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 3(1) and Article 16 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35).

2 The reference was made in the course of proceedings between Mrs McCarthy and the Secretary of State for the Home Department (‘the Secretary of State’) concerning an application for a residence permit made by Mrs McCarthy.

Legal context

European Union law

3 According to recitals 1 to 3 in the preamble to Directive 2004/38:

‘(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.’

4 Chapter I of Directive 2004/38, entitled ‘General provisions’, comprises Articles 1 to 3 of the directive.

5 Article 1, entitled ‘Subject’, states:

‘This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.’

6 Article 2 of Directive 2004/38, entitled ‘Definitions’, provides:

‘For the purposes of this Directive:

1. “Union citizenâ€

Thanks Walrusgumble. I had already read it earlier.

Bad news so

Would my case still have a chance the fact that I am a worker and the department issued me with a permanent residence certificate?

Would us arguing Zambrano work?

Obie, Ben, any advice?

Monifé wrote:Thanks Walrusgumble. I had already read it earlier.

Bad news so

Would my case still have a chance the fact that I am a worker and the department issued me with a permanent residence certificate?

Would us arguing Zambrano work?

Obie, Ben, any advice?

if zambrano was before another group of judges it may have lost.i honestly can't predict the minds of those judges.i'm certain that irish judges will attach themselves to the distiction made by the ag that here mcarty could have used metock & move elsewhere while in zambrano the minor child could not & unlikely succeed on basis of chen and definitely wont comply with the directive.see footnote of ag opinion.c&z are exceptional cases and are rarely cited when there are no minors. it goes back to my point eu can't dictate on areas it has no competence,internal matters.

Monifé wrote:Thanks Walrusgumble. I had already read it earlier.

Bad news so

Would my case still have a chance the fact that I am a worker and the department issued me with a permanent residence certificate?

Would us arguing Zambrano work?

Obie, Ben, any advice?

paragraphs 53,54&56 are key.they distinguish you from cases you want to rely on.it looks like it dont matter if you worked.if the state plays hard nose they will say it was amistake & illegal to give you pr.i dont think that would work.you are free to travel as an irish person.but,what happens if you cant get work over there are you then deprived of your family?state might settle with you in the quite considering the pr chicken up

I strongly believe the authorities will be unable to withdraw or revoke your Permanent Registration Certificate, when it was not issued by mistake, misrepresentation or deception. They haven't even claimed that this was the case. The only person that made this claim was their spokesman Mr Walrusgrumble.

All through your court case, i don't think they have alleged through their representative that you should not have the permanent Registration certificate.

The first step in them limiting your rights as Union Citizen, is to first revoke the Registration certificate, which they have not done or expressed an intention to do.

They are simply rejecting your rights.

As the courts clearly stated, the right of Mr McCarthy was linked to his wife, which is why his case was put on hold pending the decision in her wife application for Permanent registration Certificate.

As your right has not been withdrawn, i believe that will be the starting point for the Judge.

In paragraph 46-48 of the judgement, the court did not expressly state that people in Mrs McCarthy's situation can never claim their rights under Zambrano ruling. However it stated that the description of Mrs McCarthy by the national court, doesn't fit her in this position. Therefore it was the description in paragraph 14 that affected her. This means that there is really not a general ban on people with dual nationality claiming a right of residence under a different nationality.

I believe inspite of this judgement, you have an arguable case, expecially when the Irish Authority has not mention anything in their acknowledgement of service, that your registration Certificate has been revoked, or was wrongly issued.

Procedural unfairness in civil law is usually overturned in Judicial review.

I still believe you have a good case in my opinion for JR, before even the Judge looking into the McCarthy ruling.

Thanks Obie.

Feeling more positive now. Had a sick nervous feeling yesterday after reading the McCarthy judgement. Going to ring the solicitor today aswell and see what she thinks.

Obie wrote:I strongly believe the authorities will be unable to withdraw or revoke your Permanent Registration Certificate, when it was not issued by mistake, misrepresentation or deception. They haven't even claimed that this was the case. The only person that made this claim was their spokesman Mr Walrusgrumble.

All through your court case, i don't think they have alleged through their representative that you should not have the permanent Registration certificate.

The first step in them limiting your rights as Union Citizen, is to first revoke the Registration certificate, which they have not done or expressed an intention to do.

They are simply rejecting your rights.

As the courts clearly stated, the right of Mr McCarthy was linked to his wife, which is why his case was put on hold pending the decision in her wife application for Permanent registration Certificate.

As your right has not been withdrawn, i believe that will be the starting point for the Judge.

In paragraph 46-48 of the judgement, the court did not expressly state that people in Mrs McCarthy's situation can never claim their rights under Zambrano ruling. However it stated that the description of Mrs McCarthy by the national court, doesn't fit her in this position. Therefore it was the description in paragraph 14 that affected her. This means that there is really not a general ban on people with dual nationality claiming a right of residence under a different nationality.

I believe inspite of this judgement, you have an arguable case, expecially when the Irish Authority has not mention anything in their acknowledgement of service, that your registration Certificate has been revoked, or was wrongly issued.

Procedural unfairness in civil law is usually overturned in Judicial review.

I still believe you have a good case in my opinion for JR, before even the Judge looking into the McCarthy ruling.

Obie for once in your life start to act a bit humble. You lot have been proven completely wrong with this case. I have been attacked so many times by muppet amateur experts , most from non eu countries, telling me, an eu citizen, what eu law actually stands for and telling me what i voted on or what be believed we voted on in 1992. If you read it, I said its a possibility now. But I also said I don't see that working, for legal reasons ie mistake as to law is not always a defence, moreover, it might not be considered a mistake to law as it was only announce after the act.

There is however, nothing stopping them for trying since mccarthy gives ammunition. But again, I said long before you batted an eyelid, I don't see that flying. They do not have to anyway. Monife, you said that the statement of opposition has been sent over. What about the legal submissions?

In paragraph 46-48 of the judgement, the court did not expressly state that people in Mrs McCarthy's situation can never claim their rights under Zambrano ruling. However it stated that the description of Mrs McCarthy by the national court, doesn't fit her in this position. Therefore it was the description in paragraph 14 that affected her. This means that there is really not a general ban on people with dual nationality claiming a right of residence under a different nationality.


Judicial Review, ye, of course she has an arguable case. The first stage of judicial review is the easy part. It will likely at least get leave. Post leave is where it will kick off. When is the case due for hearing?

Why would the Department mention anything in their letter about revoking the card when it stated we do not consider you as British for immigration purposes? To say we are revoke clearly does indicate or acknowledge that they recognise that nationality and that there is a problem. That, I agree is the interesting point in Monife's case.


"In paragraph 46-48 of the judgement, the court did not expressly state that people in Mrs McCarthy's situation can never claim their rights under Zambrano ruling. However it stated that the description of Mrs McCarthy by the national court, doesn't fit her in this position. Therefore it was the description in paragraph 14 that affected her. This means that there is really not a general ban on people with dual nationality claiming a right of residence under a different nationality. "

It did not say one could never never never rely on the Treaty in the same manner as Zambrano did, I agree, hence why I said that it would be interesting to see the outcome where McCarthy actually left Britian and exercised her EU rights eleswhere (in the hope of later returning to UK via Singh). However, she hits a snag in that she can't find work and she resorts to social therefore can't exercise her eu rights of family reunfication. What happens then. It seems we will only know when someone has at least made a chance.

It appears, that the ECJ are taking a similar but European wide approach to this as the ECHR takes when considered Article 8 cases. In the ECtHR, it recognises that there is a right to family life...... But, the state has powers and rights to control that. Provided its proportionate, infringement maybe considered neccessary. The one major question that is asked is,even if one of the family members is a EU national (living in their own state) is there major obtstacles to residing in some other country, like that of the country of the non EU. Mere hardship is not enough. From the ECJ point of view, it is clear that the ECJ said that McCarthy's rights to move around Europe are not infringed she can go anywhere with partner, she never did it. In Zambrano, the minor child would unlikely have been able to move to another EU state and have family with her as she would unlikely succeed under Chen. Therefore, immediately, a child who can not make any voluntary choices may have to leave the union. McCarthy on the other hand can choose, and at time of judgment, there are no insourmountable obstacles in her way to gain eu treaty rights

Walrusgrumble, please, with all due respect show some basic human empathy and decency. This is not about point scoring, or i was right and you were wrong. This is about peoples lives and their livelihood. Their ability to live in the place of there establishment and choosing with their loved ones and not about this silly i win or you loose business.

I have always been consistent with the McCarthy case. Mrs McCarthy was never going to succeed in her case, as she has never in her life time, according to the court report lived independently of state handouts.

Monife case is completely differently from Mrs McCarthy, for reasons i have stated in the past, which i don't intend to restate, and on which i still stand on.

walrusgumble wrote:What about the legal submissions?

Our solicitor said they should be sent 3 weeks before the hearing date (26th May) but that the department hardly ever follows the rules and usually sends them in a few days before the hearing.

walrusgumble wrote:Why would the Department mention anything in their letter about revoking the card when it stated we do not consider you as British for immigration purposes?

They never stated that. They said the reason for refusal of my partners residence card was due to the fact that his partner (me) is an Irish National living in Ireland and that it is requirement to move to or reside in an EU member state other than that of which they are a national.

ah you are asking for deceny now?what is wrong eating humble pie as one of ye mentioned to me once.looks like ireland is not the incompetent one now.monife knows my comments are not directed at her.they are directed at you and that other one.look at the zambrano thread last applies part.you know damn well that you & others would have danced on me if the verdict was different.somehow it was irrelevant rambling,it would be when one does not understand basic eu law.emotions and strong opinion without legal back up are useless when giving opinions.its accurate advice & not false hope thats required.& certaintly not retarded allegations of beloved.some here dont like what they want to hear-and get very defensive as self preserving. god help there lawyers,no wonder why they often are economical with the truth.make allegations on your host country back them up please

Monifé wrote:

walrusgumble wrote:What about the legal submissions?

Our solicitor said they should be sent 3 weeks before the hearing date (26th May) but that the department hardly ever follows the rules and usually sends them in a few days before the hearing.

walrusgumble wrote:Why would the Department mention anything in their letter about revoking the card when it stated we do not consider you as British for immigration purposes?

They never stated that. They said the reason for refusal of my partners residence card was due to the fact that his partner (me) is an Irish National living in Ireland and that it is requirement to move to or reside in an EU member state other than that of which they are a national.

2 days if your lucky.i see but that is around about way of saying,strictly for immigration purposes in this scenerio,we dont recognise your british nationality.they were clever as they simply need to stick to the line they have and say mccarthy supports this.

monife,ask your solicitor what the position is if you went to uk or other but could not comply with article 7 of the directive, no option but to come home -making your freedom redundant and potential barrier that eu aims to prevent.then, in order to stay together, you would have to leave eu.then can the treaty itself save you like it saved zambrano.canvass to shatter to seek reversal on domestic policy and harp on that you were inititaly recognised as a brit.mention gfa (applicable to the north only but use it)he has been critical of irish citizens being treated differently .seriously write to his office!

mcarthy never left the uk,it is the most important & only aspect.neither has monife.pr shouldn't in view of art 16 been given in the 1st place.eu law does not apply unless she is deprieved of her eu citizenship indirectly.if one can be in error of law for wrongly refusing to grant status,why can't one be in error of law for wrongly granting status?the binding part of judgment makes no reference to financial source.if your static,then eu law cant apply.dual nationality will not save you no matter how rich one is.but i conceed you have a point.this is tricky policitically with the north & gfa.for nordies who dont consider themselves british but irish citizens they could ironically say they were british (policitally correct) move1 hour south & succeed in excerising eu rights.as irish they can exercise eu rights by going to london even though still in uk.even funnier a unionist can do likewise to london as an irish citizen.but mcarthy ignores this if either move to london or stay in ni.hmm trouble

obie regarding the distinction,there are 2 intrpretations. eu is not applicable if (a) one never exercised rights ie worked AND never left country of birth AND has citizenship of another country(lets ignore the deprivement bit out for a second). it seems all 3 elements are needed.you say if that the case monife wins as she beats the first one.monife you say is excercising rights as she works and has another nationality. but how can one be excercising freemovement rights if they never left their country and work/reside elsewhere?they have been static.you of course say that actual movement is not nessary?please cite, the authority for that,cases where the eu citizen in question has not already moved or has business elsewhere.i note zambrano there was no movement.in metock the eus where already in ireland working.carpetner he had business in other eu countries.chen the child was irish but in uk but not entitled to british nationality.zambrano child had no other citizenship & would be deprived and unable to move

Please continue here.

Obie, I sent you a PM because as of now, it is probably best not to discuss publicly the update to my case.

I see Brohy's published their analysis, I wish I could share their optimistism.

http://brophysolicitorsimmigration.blog ... -case.html

[quote]
Thursday, May 12, 2011
"The McCarthy Case"

JUDGMENT IN CASE C-434/09 / SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT

Another greatly anticipated judgment has been delivered from the European Court of Justice in what has become know as "The McCarthy Case". The case involved a dual national of the United Kingdom and Ireland who was born in the United Kingdom and has always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. She applied for a residence card for her spouse pursuant to European Law, and particularly Directive 2004/38. The UK Supreme Court referred a query to the Court of Justice regarding whether Mrs McCarthy could invoke the rules of European Union law designed to facilitate the movement of persons within the territory of the Member States.
The Court of Justice found that Ms McCarthy could not properly rely on the Directive as it protects the right to travel/reside only of those Union citizens who have exercised free movement. The Court further stated as follows:
“Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.â€

[quote="acme4242"]I see Brohy's published their analysis, I wish I could share their optimistism.

http://brophysolicitorsimmigration.blog ... -case.html

[quote]
Thursday, May 12, 2011
"The McCarthy Case"

JUDGMENT IN CASE C-434/09 / SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT

Another greatly anticipated judgment has been delivered from the European Court of Justice in what has become know as "The McCarthy Case". The case involved a dual national of the United Kingdom and Ireland who was born in the United Kingdom and has always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. She applied for a residence card for her spouse pursuant to European Law, and particularly Directive 2004/38. The UK Supreme Court referred a query to the Court of Justice regarding whether Mrs McCarthy could invoke the rules of European Union law designed to facilitate the movement of persons within the territory of the Member States.
The Court of Justice found that Ms McCarthy could not properly rely on the Directive as it protects the right to travel/reside only of those Union citizens who have exercised free movement. The Court further stated as follows:
“Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.â€

Monifé wrote:Update:

.... our case is actually being heard on the 25th May

best of luck Monifé.....