ESC
Welcome to immigrationboards.com!
Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, Administrator
Do you think they will though? In the replying affidavits and statement of opposition they said they are opposing our judicial review and hope for it to be quashed.walrusgumble wrote:I think the state might fold on this one just before it goes before the judge. They doubt they want to set recorded precedent.
Its possible, then again, the EU law is not clear, and the counsel will want to get paid for getting on with the case.Monifé wrote:Do you think they will though? In the replying affidavits and statement of opposition they said they are opposing our judicial review and hope for it to be quashed.walrusgumble wrote:I think the state might fold on this one just before it goes before the judge. They doubt they want to set recorded precedent.
Yeah the statement of opposition wasn't more than 2 pages and they were just repeating themselves over and over again. Didn't go into much detail at all. There only point was that I was an Irish national living in Ireland and I have never moved to or resided in another member state other than that of which I am a national.walrusgumble wrote:Its possible, then again, the EU law is not clear, and the counsel will want to get paid for getting on with the case.
Of course they will state what they say in the statement of opposition. I could wager that each of those statements in the document are no more than 3-4 lines long, and do not specify their reasons. I doubt your team are shaking in their boots. Re-read the preamble of the Directive 2004/38 EC, it gives you an idea of why the ECJ give such liberal interpretations of the legislation. Of course they hope for the case to be quashed, no more so than you hope to win.
Background reading,Zambrano judgment
On those grounds, the Court (Grand Chamber) hereby rules:
Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
EFFECT OF THE ZAMBRANO DECISION ON RIGHTS OF RESIDENCY AND REVERSE DISCRIMINATION IN IRELAND wrote:
Under EU law there does not appear to be a logical justification to require that a Member State should protect and uphold the rights of union citizens who have exercised their right of free movement, whilst at the same time failing to afford the same protection to a union citizen of that Member State who has not exercised their rights under free movement. There would appear to be a gap for discussion in Ireland in relation to how, what is known as ‘reverse discrimination,’ has been a result of the implementation of EU Law into domestic legislation. It certainly appears to be at odds with the equality guarantee under Article 40 of the Constitution.
Earlier last month in his somewhat radical opinion the Advocate-General of the Grand Chamber of the European Court of Justice held that physical movement to a Member State other than the Member State of nationality is not required before residence rights as a citizen of the Union can be invoked. In other words, a right of residence in a Member State is based on citizenship of the Union, a free standing right alongside the concept of free movement between Member States. Such rights derive directly from the Treaty on the European Union and Article 18 of the Treaty of course provides for the prohibition of discrimination based on nationality and should therefore apply to all citizens of the Union. For reference purposes the case was Ruiz Zambrano (European Citizenship) [2010] EUECJ C-34/09 (30 September 2010).
If the Court of Justice accepts the Advocate-General’s opinion, it shall be accepting a significant extension of EU law as the Regulations governing rights of residence will then apply to nationals of the Member State. Until now, the Court has said that EU law on rights of residence does not apply where the Union citizen is living in their own country and has no connection with any other European Union state. If the Court accepts his argument, then Member State nationals may be able to avail of rights under EU law, even if they have never travelled to any other Member States. Such further rights would provide the same rights to family union as other EU nationals: to have their spouse and children aged under 21 (or dependant) living with them.
The issue of reverse discrimination has indeed been a reality for many Irish citizens who see a clear divide between how they and their family members are treated in comparison to family members of EU nationals who have exercised their right to move to Ireland as another Member State. Complications such as proof of ‘dependency’ and so-called ‘purely internal situations’ have been cited in dealing with such cases involving Irish citizens.
- Sarah McCoy
Do you think there is enough wriggle room for the Dept of JusticeObie wrote:This is a positive judgment, and certainly extend the scope of Chen. However it is yet to be seen if the scope of this ruling can be applied in a general sense.
It least it will help clarify matter to the UK authorities, regarding whether Chen parent will have the right to work or not.
[url=http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009C0034:EN:HTML]opinion Adv General Sharpston in Case C‑34/09 Zambrano[/url] wrote:
150. I therefore suggest that the answer to the second question should be that Article 18 TFEU should be interpreted as prohibiting reverse discrimination caused by the interaction of Article 21 TFEU with national law that entails a violation of a fundamental right protected under EU law, where at least equivalent protection is not available under national law.
This is just bizarre enough to happen in IrelandImmigrationLawyer wrote:I think the Dept may try to restrict the principle to cases where either both parents on whom the child is dependent are facing deportation, or where there is a single parent on whom the child is dependent facing deportation. They have held in many cases already that the child may stay with the parent who has residence in Ireland if the other parent is deported. The question will then be whether the splitting up of the family is a proportionate interference with the family members' Article 8 rights.
Irish Constitution wrote: FUNDAMENTAL RIGHTS
Article 41
1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
acme4242 wrote:This is just bizarre enough to happen in IrelandImmigrationLawyer wrote:I think the Dept may try to restrict the principle to cases where either both parents on whom the child is dependent are facing deportation, or where there is a single parent on whom the child is dependent facing deportation. They have held in many cases already that the child may stay with the parent who has residence in Ireland if the other parent is deported. The question will then be whether the splitting up of the family is a proportionate interference with the family members' Article 8 rights.
We will have a situation for a genuine loving married family to see each other,
they must first split up if the spouse is Irish, so one becomes a lone parent.
Ah...For the love of God, someone stop the madness.
Remember this is same Irish Law system that issued a ban on pregnant
girls travelling to England.
Honestly, you couldn't make this stuff up. Or maybe the idea is to
mock and ridicule the Irish Constitution.
Irish Constitution wrote: FUNDAMENTAL RIGHTS
Article 41
1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
What about McCarthy v UK then?Monifé wrote:So does everyone think that the Zambrano case would be positive for all EU ciitzens rather than just EU citizen children?
Our solicitor said it is very good and that it basically means that any EU citizen can avail of EU rights under EU law, even if they have never exercised their freedom of movement.
