ESC

Click the "allow" button if you want to receive important news and updates from immigrationboards.com


Immigrationboards.com: Immigration, work visa and work permit discussion board

Welcome to immigrationboards.com!

Login Register Do not show

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

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

Locked
Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

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

Post by Monifé » Wed Sep 08, 2010 8:02 pm

Well it's happened and sooner than I thought.

After 4 months and 2 days of processing my partners application for a residence card has been refused on the basis of my irish citizenship.
Your application is based on your relationship to an Irish National. The EU Directive 2004/38/EC of the European Parliament (Article 3 refers) shall apply to all Union Citizens who move to or reside in a Member State other than that of which they are a national. As your partner is an Irish National the Directive and Regulation 656/2006 as amended do not apply to you and therefore your application is not a matter for and cannot be accepted by EU Treaty Rights section.
The above is the relevant extract from the letter we received.

What dumbfounds me is, why did they approve and issue me with a Permanent Residence Certificate (certifying that I am a British National in Ireland over 5 years) and then state that I am an Irish national.

Also, I currently only hold a British passport, I dont know if that has any relevance?

And, our solicitor said, that we might not be able to seek an internal review as the DOJ have refused other dual citizens a review on the basis that they are ambit the regulations, whatever that means.

I just dont know what to do next.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

fatty patty
Senior Member
Posts: 518
Joined: Wed Feb 03, 2010 3:25 pm
Location: Irlanda

Post by fatty patty » Wed Sep 08, 2010 8:44 pm

What a joke! I am sorry to hear this. I think you should apply on the basis of an Irish spouse (as they are agreeing that you are Irish even though you are dual national).

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Wed Sep 08, 2010 9:27 pm

fatty patty wrote:What a joke! I am sorry to hear this. I think you should apply on the basis of an Irish spouse (as they are agreeing that you are Irish even though you are dual national).
Cant do that, we are not married yet.

Only other option is defacto and the outcome of the application is subject to immigration status of the applicant (asylum seeker) and previous immigration history in the state, so that is definitely not an option for us.

I think if this is challenged in court by someone in the same situation, they would win. Alas, we do not have the money for court proceedings :(
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Obie
Moderator
Posts: 14657
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Wed Sep 08, 2010 9:39 pm

Sorry to hear about the rejection of your partner's application.

Can i ask how you obtained your British Citizenship? was it through your parents who were migrant worker in Ireland at the time of your Birth, or was it by virtue of the fact you were born in Northern Ireland to Irish Parents.

The significance of this is, if your parents were British Migrant worker, who gave birth to you in Ireland, then you have a right under community law, even if you never moved.

If they have recognised your right under community law and issued you with a Permanent Resident Certificate, then you are in actual fact recognised as a Union Citizen, and hence have right on that basis.

They cannot revoke your PRC, except you live ireland for more than 2
year.

If they have issued you a PRC under Regulations 15 of there EEA regulations, it means your Union Citizenship rights has been recognised.

They cannot accept it in one case and reject it in another.

Nevermind the caselaw on Chen.
Black life matters.

koded
Member
Posts: 163
Joined: Wed Apr 22, 2009 3:06 am

Post by koded » Wed Sep 08, 2010 9:59 pm

Sorry to hear this. I think if both of you have enough money it will be better to move out of Ireland and get married then he should apply for eu family permit and come back to Ireland. It could take time but it is one of the best option here.
Best of luck!

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Wed Sep 08, 2010 10:13 pm

Hi Obie, my parents were born in England and moved here when they were young. They both hold British passports, always have. As have 3/4 of my grandparents.

I was born in Ireland.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

IQU
Diamond Member
Posts: 1020
Joined: Mon May 10, 2010 9:34 pm
Location: ireland

Post by IQU » Wed Sep 08, 2010 10:48 pm

ohhhh monife you should contact the solviet and good solicitors bring them to court for justice .i feel so sorry to hear that .is any justice left in doj

Obie
Moderator
Posts: 14657
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Wed Sep 08, 2010 11:07 pm

Article 16 of Directive 2004/38EC, states that once PR has been acquired, which the Irish Authorities have confirmed, it cannot be lost except if you left Ireland for more than 2 Years.

If they have issued you with it, it means you are covered by the directive, and they cannot simply say you are not when you apply for your partner. They are bound by their previous decision.

I really do think you have a strong case.
Black life matters.

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Thu Sep 09, 2010 7:02 am

Thanks everyone :)

Yeah Obie, I think we have a good case too, I am just worried the DOJ would throw a spanner in the works and what if we lost?

We certainly dont have the money to bring them to court, so if we did, it would be on the basis that we were definitley going to win and they would pay the costs.

We are waiting on advice from a barrister through our solicitor. Will post next week when I know more.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

acme4242
Senior Member
Posts: 604
Joined: Tue Nov 18, 2008 12:03 pm

Post by acme4242 » Thu Sep 09, 2010 7:30 am

[color=green][b]Good [/color][color=white]Friday [/color][color=orange]Agreement[/b][/color] wrote:
(vi) recognise the birthright of all the people of Northern Ireland to
identify themselves and be accepted as Irish or British, or both, as they
may so choose, and accordingly confirm that their right to hold both
British and Irish citizenship is accepted by both Governments and would
not be affected by any future change in the status of Northern Ireland.
So the Irish Government are now openly prepared to break the Good
Friday agreement
Or is this discrimination only against Irish/British dual citizens born in
the 26 counties who are not allowed their British Identity.

This should cause serious concern.

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Fri Sep 10, 2010 9:54 am

Ben have you any advice for us? :)
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

9jeirean
Senior Member
Posts: 556
Joined: Wed Jun 10, 2009 3:15 pm

Post by 9jeirean » Fri Sep 10, 2010 12:13 pm

Hey Monife. Sorry to read about this. I have no doubt that someone sooner than later will take them to court on this. I do hope the barrister has good news for you as you guys definitely have a strong case here. It is a big shame what the DoJ is doing. All I can say is hang in there guys, you'll get there.
God luck to you and yours.

9j
What lies behind us and ahead of us is nothing compared to what lies within us

Ben
Diamond Member
Posts: 2685
Joined: Thu Jul 05, 2007 3:33 pm
Location: Elsewhere
Contact:

Post by Ben » Sat Sep 11, 2010 9:11 am

acme4242 wrote:
[color=green][b]Good [/color][color=white]Friday [/color][color=orange]Agreement[/b][/color] wrote:
(vi) recognise the birthright of all the people of Northern Ireland to
identify themselves and be accepted as Irish or British, or both, as they
may so choose, and accordingly confirm that their right to hold both
British and Irish citizenship is accepted by both Governments and would
not be affected by any future change in the status of Northern Ireland.
So the Irish Government are now openly prepared to break the Good
Friday agreement
Or is this discrimination only against Irish/British dual citizens born in
the 26 counties who are not allowed their British Identity.

This should cause serious concern.
acme4242, at which point did Monifé say she is from Northern Ireland?


Monifé wrote:Ben have you any advice for us? :)
Hi Monifé.

Sorry to hear about this. The problem is, in the McCarthy v SSHD [2008] EWCA Civ 641 in the UK it was concluded that a UK national's right of residence in the UK is derived from national law, not EC law. This is the case even if a UK national also holds nationality of another EU state. Importantly, this case has yet to be heard by the ECJ. Until then, the Irish authorities may simply mirror the UK's apparent current standpoint - an Irish national's right of residence in Ireland is derived from national law, not EC law. This is the case even if an Irish national also holds nationality of another EU state.

However, Obie raised an interesting point. The DoJ has already recognised that you are a UK national who has acquired the right of permanent residence in Ireland after having lawfully resided in Ireland for at least five years in conformity with Directive 2004/38/C. They can't very well say "we recognise your right of permanent residence under EC law which derived from your right of residence under EC law - but we don't recognise the right of residence of your family member / beneficiary under the same EC law". It just doesn't wash.

I'd say, using Brophy's, you have quite a strong case.

Good luck with it Monifé. I've decided not to post on this website any more, but I posted this for you.
I am no longer posting publicly on this website - PM me if needed.

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Sat Sep 11, 2010 10:08 am

Ben wrote:Hi Monifé.

Sorry to hear about this. The problem is, in the McCarthy v SSHD [2008] EWCA Civ 641 in the UK it was concluded that a UK national's right of residence in the UK is derived from national law, not EC law. This is the case even if a UK national also holds nationality of another EU state. Importantly, this case has yet to be heard by the ECJ. Until then, the Irish authorities may simply mirror the UK's apparent current standpoint - an Irish national's right of residence in Ireland is derived from national law, not EC law. This is the case even if an Irish national also holds nationality of another EU state.

However, Obie raised an interesting point. The DoJ has already recognised that you are a UK national who has acquired the right of permanent residence in Ireland after having lawfully resided in Ireland for at least five years in conformity with Directive 2004/38/C. They can't very well say "we recognise your right of permanent residence under EC law which derived from your right of residence under EC law - but we don't recognise the right of residence of your family member / beneficiary under the same EC law". It just doesn't wash.

I'd say, using Brophy's, you have quite a strong case.

Good luck with it Monifé. I've decided not to post on this website any more, but I posted this for you.
Thanks Ben :)

Our solicitor told us about that case. She is trying to find out when it is going to be heard as she said it will have an impact on our case.

I wrote to Siobhan Duffy yesterday, representative in Ireland for EU commission and also to the ambassador of the British Embassy in Ireland. My father is also going to write to the Embassy.

Should hear back from the barrister next week also.

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

Ben
Diamond Member
Posts: 2685
Joined: Thu Jul 05, 2007 3:33 pm
Location: Elsewhere
Contact:

Post by Ben » Sat Sep 11, 2010 10:13 am

Fancy going to the Irish embassy in London and renouncing your Irish citizenship?

It's gotta be cheaper and less headache.
I am no longer posting publicly on this website - PM me if needed.

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Sat Sep 11, 2010 10:33 am

Ben wrote:Fancy going to the Irish embassy in London and renouncing your Irish citizenship?

It's gotta be cheaper and less headache.


Oh my god Ben, great minds think alike. I have actually thought about that as an option.

Do you think there would be any future difficulties for me/us if i was to do that?
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Ben
Diamond Member
Posts: 2685
Joined: Thu Jul 05, 2007 3:33 pm
Location: Elsewhere
Contact:

Post by Ben » Sat Sep 11, 2010 10:41 am

Monifé wrote:
Ben wrote:Fancy going to the Irish embassy in London and renouncing your Irish citizenship?

It's gotta be cheaper and less headache.


Oh my god Ben, great minds think alike. I have actually thought about that as an option.

Do you think there would be any future difficulties for me/us if i was to do that?
Not really. You're still a British citizen who has a acquired the right of permanent residence under EC law. And the EU aside, Ireland doesn't treated British citizens resident in Ireland as foreigners, just as the UK doesn't treat Irish citizens resident in the UK as foreigners.

You just won't be able to vote in referendums, that's about it.

Think carefully though, it's a big decision and I was only suggesting it tongue in cheek.
I am no longer posting publicly on this website - PM me if needed.

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Sat Sep 11, 2010 10:52 am

Will do. It will definitely be one of the last options.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Thu Sep 30, 2010 6:15 pm

The DOJ finally wrote back to us today and said the option for a review is not open to us as we fall ambit the regulations and the directive.

And the EU treaty rights representative said that my partners file has been sent to the Repatriation section, what does that mean??

Looks like High Court is the only option, I am just hoping my solicitor will do "no win, no fee" sort of thing for us.

Will post more when I know more.

:( :( :(
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Obie
Moderator
Posts: 14657
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Thu Sep 30, 2010 6:23 pm

Therepartiation Unit deals with removals. I recon you start acting pretty quickly, before DOJ start taking some adverse measure.

You can as an option move to the North for a brief moment and exercise treaty rights there and move back to the republic. You do not have to live there permanently. You could be commuting.
Black life matters.

Locked
cron