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

Forum to discuss all things Blarney | Ireland immigration

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Monifé
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Post by Monifé » Tue Oct 26, 2010 6:28 pm

acme4242 wrote:According to the papers, the Shirley McCarthy case is being heard this Thursday.
Yeah I knew it was being heard on the 28th, but thanks for the links acme.

Do u know where I would find the judgement on Thursday or will it take a few days to publish?
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

walrusgumble
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Post by walrusgumble » Wed Oct 27, 2010 8:59 am

Monifé wrote:
acme4242 wrote:According to the papers, the Shirley McCarthy case is being heard this Thursday.
Yeah I knew it was being heard on the 28th, but thanks for the links acme.

Do u know where I would find the judgement on Thursday or will it take a few days to publish?
Approved Written judgement?Probably not. But, even the Irish courts appear to have it published on the net rather quickly now a days, no doubt the EU courts are quick. BUT BUT, it will likely be made public on the day by the media and the basis of the judgement will be known. Remember, Journos, are permitted to be in the court.

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Post by Obie » Wed Oct 27, 2010 9:56 pm

I don't believe it is judgement day tomorrow. I believe it might be the Avocate General handing his opinion, or interested states and the commission making oral submission.

There has not been an opinion from the advocate general yet. Once this is done, judgement will follow.

Whatever happens Monife, you should remember your circumstance is different from that of Mrs McCarthy. All her 51 years in the UK, has been as a British Citizen. She never lived as a migrant worker. She claimed benefits, therefore i am in agreement with the British that she cannot use her rights as a British National, under which she has been living in the UK, to claim rights of Resident Permit, under the EEA regulation.

Unlike you, the British Authorities, never issued her with a Registration Certificate, or permit Resident Certificate.
If they had, as in your case with the Irish, they would have been legally bound to issue her spouse with a Residence Document now Resident Card.
Smooth seas do not make skilful sailors

Monifé
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Post by Monifé » Thu Oct 28, 2010 8:36 am

Thanks Obie.

I know our case is stronger than the McCarthy one but I still think it could have an impact on ours, especially if the Irish Judges take on the opinion of the ECJ.

Is ours stronger again because I have never received benefits and because I am working?

I did not realise that she couldnt claim rights because she had received benefits. I knew they were questioning her being a qualified person, but didnt know that was the basis of it.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Monifé
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Post by Monifé » Fri Oct 29, 2010 11:03 am

Has anyone any news/updates on the McCarthy case?
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

acme4242
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Post by acme4242 » Wed Nov 03, 2010 1:55 pm

nothing yet, but here is the UK policy, pending McCarty outcome

"In the interim ECOs are advised that persons who have EEA nationality whether or not they are dual nationals may choose whether they wish to exercise any rights they may have under their EEA nationality. "

Source
http://www.whatdotheyknow.com/request/d ... oing-40613

it links to

http://www.whatdotheyknow.com/request/1 ... 0Aleck.doc

Monifé
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Post by Monifé » Fri Nov 26, 2010 2:52 pm

The Advocate General's opinion was negative and in my opinion it contradicts the other Advocate General's opinion in the Zambrano case completely.

I am really worried now.

Do you think the negative opinion is going to have a serious effect on our case?

By having a permanent residence certificate, do we still stand a strong chance?

Seeing as the Advocate General said that there has to be actual movement to invoke the rights under the directive, do you think that we have no chance now even with the permanent residence certificate?
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

acme4242
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Post by acme4242 » Sat Nov 27, 2010 5:05 pm

shock, absolute shock.

It took some gymnastics from the Adv General to get around earlier
ECJ case law Judgments in Avelloand Micheletti

She actually used these words
Adv General Kokott opinion wrote: the dual nationality of a Union citizen can make it necessary, when
determining his name, to depart from the domestic rules...... as he might
suffer serious inconvenience at a private or a professional level.......
but this cannot, however, necessarily be transposed to the right of residence
She also managed to dismiss Adv Generals Sharpston opinion.

This is a little Christmas present for the Irish Dept of Justice.
There is no way to not be worried by this change in direction from
the EU courts, and how the Irish Dept of Justice will use it.
They could even try to dismiss your permanent residence certificate
as a clerical error.

Monifé
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Post by Monifé » Sat Nov 27, 2010 5:24 pm

acme4242 wrote:They could even try to dismiss your permanent residence certificate as a clerical error.
I thought they couldn't revoke it without absence from the state of more than 2 years? :(

So if the above happens, and say our case is dismissed/lost, what do we do next?

Is spouse of Irish national even an option to us with his negative immigration history? (Not married yet, but if it the above was plausible would definitely get married, although would have to put notification in which you have to wait at least 3 months which is worrying)

I know there is also the option of moving north, but with me the only one working (and having to pay the rent and bills) we have no savings and I don't see how we would survive while I look for a job, if I can even get a job up there :(
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

acme4242
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Post by acme4242 » Sat Nov 27, 2010 5:34 pm

acme4242 wrote:They could even try to dismiss your permanent residence certificate as a clerical error.
can I take this back please, it hasn't happened, and probably won't

Any words from your legal team, anything you can share ?
Did you see my post above, the UK are not refusing Dual Citizenship
rights until the final judgment of McCarty.
If Ireland are following UK lead, they should also do the same

koded
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Post by koded » Sat Nov 27, 2010 6:32 pm

I will strongly suggest that you may move to other countries. UK or even to sweden. You may study in Sweden which is absolute free. You only need money to finance your living. After 6 months you may then move back to Ireland.
I wish you guys all the best.

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re: koded

Post by daddy » Sat Nov 27, 2010 8:09 pm

Koded, you are sugesting the surinder singh rute, you should be aware that non-Eu family members of Eu citizens who excercised their rights as students or economically in-active persons cannot benefit from the surinder singh route.

The eu citizen would have excercised his/her right as a worker(NOT STUDENT) in another eu country for at least 6 months to enable him/her return to his/her country with his/her non- eu family member.

Monifé
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Post by Monifé » Sat Nov 27, 2010 8:20 pm

acme4242 wrote:Any words from your legal team, anything you can share ?
Not yet, as I only heard about the opinion late Friday so should hear from them on Monday, will keep ya's posted.

My solicitor did say at the start that even if McCarthy's case is refused and sets a negative precedence that our case is still strong because of the permanent residence certificate and the fact that I am a qualified person because I am exercising treaty rights as a worker.

Just have to wait (as usual) and see ...
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

acme4242
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Post by acme4242 » Sat Nov 27, 2010 10:41 pm

I am still amazed by this legal gymnastics
Adv General Kokott opinion wrote: the dual nationality of a Union citizen can make it necessary, when
determining his name, to depart from the domestic rules...... as he might
suffer serious inconvenience at a private or a professional level.......
but this cannot, however, necessarily be transposed to the right of residence
So Dual EU Citizens can rely on EU rights in cases where they might
suffer serious inconvenience at a private or a professional level,
But are not entitled to EU rights in cases concerning the right of residence.

What about Mutatis mutandis ?

Monifé
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Post by Monifé » Sun Nov 28, 2010 11:02 am

acme4242 wrote:So Dual EU Citizens can rely on EU rights in cases where they might suffer serious inconvenience at a private or a professional level
Could we not state that we would suffer serious inconvenience at a private level at not being allowed the right to family life?

Or is it a bit far-fetched?

What is Mutatis mutandis?
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

acme4242
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Post by acme4242 » Sun Nov 28, 2010 1:33 pm

Monifé wrote:
acme4242 wrote:So Dual EU Citizens can rely on EU rights in cases where they might suffer serious inconvenience at a private or a professional level
Could we not state that we would suffer serious inconvenience at a private level at not being allowed the right to family life?

Or is it a bit far-fetched?

What is Mutatis mutandis?
Yes, many would consider not being allowed the right to family life
a serious inconvenience at a private level.
This is why I'm a little amazed at Juliane Kokott opinion.
But she is the Judge, so that's that.

Mutatis mutandis, Meaning, the necessary changes having been made;
having substituted new terms; with respective differences taken into
consideration.
Community law has all or nothing effect, if it is applicable in one case, it is applicable mutatis mutandis.

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Post by Obie » Mon Nov 29, 2010 1:48 am

You are reminded that this is just an advocate general's opinion, it is not legally binding on any member state, notwithstanding the fact that it is adopted by the judges in majority of cases.

In Jia, the Advocate general's opinion (GEELHOED), was not engaged by the judges. He advocated a general application of Akrich principle, but the judges never adopted this approach in Jia
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Post by walrusgumble » Mon Nov 29, 2010 2:06 am

acme4242 wrote:I am still amazed by this legal gymnastics
Adv General Kokott opinion wrote: the dual nationality of a Union citizen can make it necessary, when
determining his name, to depart from the domestic rules...... as he might
suffer serious inconvenience at a private or a professional level.......
but this cannot, however, necessarily be transposed to the right of residence
So Dual EU Citizens can rely on EU rights in cases where they might
suffer serious inconvenience at a private or a professional level,
But are not entitled to EU rights in cases concerning the right of residence.

What about Mutatis mutandis ?
that case, avello, involved the use of surnames? how does that case relate to family reunificaton or rights of non eu people?were all parties eu citizens?

which regard to inconvenience, it relates to the use of one's known surname. if a professional or any women was well known or established, some might not, take on the marriage name as it might lead to confusion. can't hugely see how it has relevance to family reunification involving a non eu.

by the way, unlike the common law system, the ecj is not bound by previous cases, precendce while helpful, the judges are are not bound to follow it.

one could argue that the new idea, from an unelected member (ag in zambro) was mental gymnastic from previous understanding and clear reference in the treaty as to what eu citizenship means and free movement.

Monifé
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Post by Monifé » Tue Jan 25, 2011 9:25 pm

Update on case:

DOJ finally served their opposition papers on us.

Seeing as it took so long, we have to wait til next list of fixed dates.

Hearing hopefully in April.

Department's defence is basically stating that I am an Irish national living in my member state of origin so cannot derive rights from EU law. Also stated that I am not exercising any rights under EU law and am not entitled to any rights under EU law. They also state that my partner is not a "permitted family member" because we have not had a durable relationship in my partner's country of origin, nor lived together there, and they go on to say that he doesn't fall within the category of family member.

Quite short IMHO and also, absolutely nothing mentioned about the Permanent Residence Certificate (issued to me). Does this mean they are s**tting themselves and are trying to not mention it because they are hoping it will go away?

Any opinions?
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

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Post by fatty patty » Tue Jan 25, 2011 10:21 pm

Monifé wrote:Update on case:

DOJ finally served their opposition papers on us.

Seeing as it took so long, we have to wait til next list of fixed dates.

Hearing hopefully in April.

Department's defence is basically stating that I am an Irish national living in my member state of origin so cannot derive rights from EU law. Also stated that I am not exercising any rights under EU law and am not entitled to any rights under EU law. They also state that my partner is not a "permitted family member" because we have not had a durable relationship in my partner's country of origin, nor lived together there, and they go on to say that he doesn't fall within the category of family member.

Quite short IMHO and also, absolutely nothing mentioned about the Permanent Residence Certificate (issued to me). Does this mean they are s**tting themselves and are trying to not mention it because they are hoping it will go away?

Any opinions?
I personally think the Department is taking their motivation from the judges views on McCarthy case. Although your situation is completely different from Mrs McCarthy who was on state benefit whereas you are a public servant, why would they disregard your PRC i don't understand. How long ago did you got PRC, i mean was it before or after you applied for EU Fam. Also is McCarthy case still going. BTW good luck on the case hope you win the case, don't see why not if your solicitors put up good arguments.

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Post by koded » Wed Jan 26, 2011 2:33 pm

Monifé wrote:Update on case:

DOJ finally served their opposition papers on us.

Seeing as it took so long, we have to wait til next list of fixed dates.

Hearing hopefully in April.

Department's defence is basically stating that I am an Irish national living in my member state of origin so cannot derive rights from EU law. Also stated that I am not exercising any rights under EU law and am not entitled to any rights under EU law. They also state that my partner is not a "permitted family member" because we have not had a durable relationship in my partner's country of origin, nor lived together there, and they go on to say that he doesn't fall within the category of family member.

Quite short IMHO and also, absolutely nothing mentioned about the Permanent Residence Certificate (issued to me). Does this mean they are s**tting themselves and are trying to not mention it because they are hoping it will go away?

Any opinions?
It is a weak argument by saying that he is not a permited family member merely because both of you have not lived together in his country of origin. when has it become part of the requirments that you must first live in your partner's country of orign. And what right do DOJ has in deciding where couples should leave before they classify a relationship as being "durable"
Of course, you dont expect them to mention the PRC as that will count against their decision as they are trying to defend their decision. It is upto your barrier to use that in favour of you.
Good luck in your case!

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Post by Monifé » Wed Jan 26, 2011 8:21 pm

fatty patty wrote:I personally think the Department is taking their motivation from the judges views on McCarthy case. Although your situation is completely different from Mrs McCarthy who was on state benefit whereas you are a public servant, why would they disregard your PRC i don't understand. How long ago did you got PRC, i mean was it before or after you applied for EU Fam. Also is McCarthy case still going. BTW good luck on the case hope you win the case, don't see why not if your solicitors put up good arguments.
Got the PRC in April 2010, first applied for EUFAM for partner end of May 2010. Advised by the knowledgeable Ben on this forum to get the PRC first, and thank god we did, because unless DOJ throw a spanner in the works, this is what is going to win us the case.

Barristers and Solicitor very confident about the case, so fingers crossed.

Re: McCarthy case, the Advocate General delivered their (negative) opinion but the final judgement has not been made yet.

Thanks for the well wishes :)
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Fri Jan 28, 2011 4:12 pm

I suspect your lawyers are right - you likely have a strong case, especially since DOJ have confirmed you are there on the basis of European law by approving your PR application. Well prepared!

You might talk with your solicitors about trying to get DOJ to pay damages and all your legal expenses.

You might also suggest that your solicitors try to submit a letter describing your situation to the ECJ for consideration in the ongoing case. I do not know what options there may be in this case, but yours is a good example...

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Post by Monifé » Fri Jan 28, 2011 11:07 pm

Thanks for the advice Directive.

My solicitors and barristers are doing it no win no fee (well we just paid €1000 for the running of the case) so I think that is good in itself as they must be confident about it.

Even if we don't win and are liable for DOJ's fees, our solicitors are still going to try and get a court order to pay the fees as we had to take the case as we had no other option and that it is a case of public importance.

I have wrote to the European Commission rep in Ireland and so far they have just given me some advice, but have not forwarded anything to ECJ, I think they want to wait for the judgement on the McCarthy case.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

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Post by walrusgumble » Mon Jan 31, 2011 10:07 am

if you win your case, the usual order from a judge is that the other side will pay your lawyer's costs which could be in the region of over €20k. (you of course will never pay that on no foal no fee, simply just the €1k to cover all expenses, eg stamp duty to file, photocopying etc)

If you loose, the other side would automatically seek an order against you for their costs. Of course, where a case is of public importance, the judge may grant no order of costs, even the state themselves might not suggest same.

I think the state might fold on this one just before it goes before the judge. They doubt they want to set recorded precedent.

I can't see how they can determine that you should have lived in his country , when Metock, a case dealing with married couples (married and de facto are nearly all in the same in social views today - legally of course, its different, a bit) clearly stated that it was not neccessary. If they had actually come out and stated something like "from reviewing the documentation submitted by the applicant, we are not satisified that the couple have meet the de facto relationship criteria as per Commission Communications", then that might have been enough.

Judicial REview does not always award damages. What have you lost out on? Isn't your partner still in Ireland and ye are together? Has this effected your ability to work?

It might have been easier if ye had married, as you are on all fours with Metock. (whilst the same principles apply, until ye fall within the Irish legislation for partnership, ye fall within the de facto REg 3.2 critieria)

McCarthy aspect, to point out bluntly, the British government were basicially stating that the woman, in the words of a one time disgraced Irish politican, "had a new found interest", in her Irish nationality. She was considered British all her life and as far as the government was concerned considered herself British until recently. Interestingly, the Irish government supported the British stance.(considering its express provision on the Irish diaspora in the Constitution) Did McCarthy even have a record of holding an Irish passport until the relationship?(which, even if she did not, does not effect her being Irish), the social was the secondary, but crucial argument, in case the first was defeated.

What ever about the possibility that the ECJ find that in the fact that the Directive soley deals with actual Free movement, which sounds reasonable, I think the court might accept the argument of dual nationality and as such, one meets the criteria (Monife's parents actually did come over). If there was trouble tomorrow in Ireland, Monife's family would expect to be able to turn to the British Embassy and be treated as British , so the refusal to reconise dual nationality strictly in the context of eu free movement is nonsenical, particularily with so many cross boarder relationships.

As for you going to the ECJ, as you know, you will have to go through the Irish courts first. Expect to wait a while.

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