Directive 2004/38/EC and Ireland

After re-reading the Directive 2004/38/EC, it seems to me that the directive says that residency should be granted to spouses irrespective of nationality...ie it should not matter that the E.U spouse is a third country national.Secondly,the Irish government cannot even apply their National law on residency.This is a clear caseof misinterpretation by the Irish government on the power of their national legislation (S.I 656/2006) over E.U families

From Directive 2004/38/EC, it is clear that national legislation only applies to extended family members (in-laws,cousins) and not spouses. The DOJ have no right to use their national legislation to refuse E.U1 applications for spouses.
Here's the relevant part of the Directive 2004/38/EC.

http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:PDF

5)The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of ‘family member’ should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6)In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

Their rejection of E.U1 applications and their application of Irish S.I 656 on E.U families is completely illegal and I think we should be able to claim damages

I have to study this all again in evening.

About damages I am not sure.
Has anyone received the damages from DOJ ?

Thanks Archi for posting this

I wonder what part of 'irrespective of nationality' do the idiots at DOJ not understand! E.U/Non E.U does not matter when it comes to residency for E.U families.

archigabe wrote:I wonder what part of 'irrespective of nationality' do the idiots at DOJ not understand! E.U/Non E.U does not matter when it comes to residency for E.U families.

I dont think they are disputing this.

The problem i believe is coming form the law that was passed last year by "michael mc dowell" and that is superseding the EU law.

They have choosed to apply Irish law instead of EU law.

Thats what i understood however i am not absolutely 100% on this and could be proven wrong.

have a read at the following and its interesting

Are any countries seeking opt-outs?

Ireland and the UK currently have an opt-out from European policies concerning asylum, visas and immigration. Under the new treaty they will have the right to opt in or out of any policies in the entire field of justice and home affairs.

source
http://news.bbc.co.uk/2/hi/europe/6901353.stm

I guess that's why unless we challege the Government legally things might not change.

archigabe wrote:I guess that's why unless we challege the Government legally things might not change.

I guess even if we challenge them legally. They are still not restricted as they have opt out option it appears that Uk is not using the option where on the other has Ireland is using that very sneakily.

I don't see this Eu-1 problem getting resolved in Ireland anytime in near future.Unless something drastic happens.

That said i will say keep hopes high but stay realistic too.

runie80 wrote:have a read at the following and its interesting

Are any countries seeking opt-outs?

Ireland and the UK currently have an opt-out from European policies concerning asylum, visas and immigration. Under the new treaty they will have the right to opt in or out of any policies in the entire field of justice and home affairs.

They are still not restricted as they have opt out option it appears that Uk is not using the option where on the other has Ireland is using that very sneakily

runie80, The opt-out that is mentioned here is not pertaining to the Freedom of Movement Directive ...currently the Directive in topic... but rather regarding the national policies that govern the visa policies of nationals not connected to the EU in any way. This is where is Schengen treaty,for example, comes in for other countries... something which the Ireland and the UK has opted out of.

If the applicant in question is a EU national or the family member, no Member State can opt out of it as it is one of the most fundamental principles of the EU.

Docterror wrote: runie80, The opt-out that is mentioned here is not pertaining to the Freedom of Movement Directive ...currently the Directive in topic... but rather regarding the national policies that govern the visa policies of nationals not connected to the EU in any way. This is where is Schengen treaty,for example, comes in for other countries... something which the Ireland and the UK has opted out of.

If the applicant in question is a EU national or the family member, no Member State can opt out of it as it is one of the most fundamental principles of the EU.

Thanks Docterror

I got your point.

Very clear and easy to understand your post.
Then Archigabe is right. Damages could be claimed as Ireland is in breach.

Yeah I agree the opt out seems to be on visas for third country nationals and cannot be applied to E.U families...I wish someone would sue the pants off those Nazis in the Irish government. They seem to think they have no accountability to anyone after being in power for 10 years!

archigabe wrote:Yeah I agree the opt out seems to be on visas for third country nationals and cannot be applied to E.U families...I wish someone would sue the pants off those Nazis in the Irish government. They seem to think they have no accountability to anyone after being in power for 10 years!

agreed

I actually think that suing for damages is one of the best ways to light a bit of a fire under the irish government.

But you have to be willing to invest time and money in the adventure. And be willing to be patient.

Often it is best to have a situation where you have direct financial loss - this gives you standing before the court and a clear amount of money they is hard to contest.

A clear example of this is where the non-EU spouse wants to work, has a job offer, but is unable to work because of government rules. You could likely take the government to court for compensation. I think you would likely have a pretty smooth case with the support of a suitable and good lawyer.

I think the solutio will come swiftly, but in a few years. I am certain that the European Comission knows about the problem, and want to solve it, but there is something more important, and they are willing to wait. As you understand, the Reform Treaty will be rattified by refferendum in Ireland. THE EU doesn't want to upset Ireland before this is done, but after that I am sure the hammer is gonna hit them hard on their irish resistence to apply EU law. The European Comission is very eager to enforce EU law and take countries to the European Court of Justice, but the goal to federalize Europe is more important and maybe thats why they are holding. THat doesn't mean Ireland will be able to do what is doing now indefenetely. They will hit them hard, and may even make them pay damages. This is my opinion and conclusion- no solution before 2-3 years.

i think to start with. people in the forum should organize peaceful demonstration in the function host by the idiotic irish government. i read some post here. the irish president showed up in some event and prasied the immigrants are good for the irish society. the legal immigrants in ireland should just show up in the same event and tell the press that we are suffering and dont let the stupid politicans just talking bullxxxx in front of the camera. if the legal immigrants here are good for the society, how come everyone in the forum complainting?

I passed the Dail,Leinster house (Irish parliament) today and there was a guy sitting with a huge sign criticising Ahern for child abuse in front of the gate. I think even if 10-15 people go there and sit quietly with a few signs it will get attention of all the lawmakers in Ireland. We should of course go there when the Dail is in session. I think it will be more effective than protesting in front of the GNIB as it's the politicians and the policymakers who are responsible for this mess.
We should also try to send petition letters to the Fine gael spokesperson for immigration (Denis Naughton) who was just appointed last month.

archigabe wrote:I passed the Dail,Leinster house (Irish parliament) today and there was a guy sitting with a huge sign criticising Ahern for child abuse in front of the gate. I think even if 10-15 people go there and sit quietly with a few signs it will get attention of all the lawmakers in Ireland. We should of course go there when the Dail is in session. I think it will be more effective than protesting in front of the GNIB as it's the politicians and the policymakers who are responsible for this mess.
We should also try to send petition letters to the Fine gael spokesperson for immigration (Denis Naughton) who was just appointed last month.

I think protest is a defo in this situation. The irish don't care about foreignors at the moment (painting with a wide brush here) so we are going to have to stand up for ourselves.
However this needs to be organized for it to be effective. It can't be done on this forum alone. People need to meet and make a plan. I think that was made apparent by the last attempt at protest here in the forum.
I also think it would be even more effective to form a party around immigration issues as well as meet with other parties that have immigration sympathetic stances (socialist party, sinn fein etc etc).
Brian Lenihan is an arrogant, self serving and incompetant bastard. Lets make his life a little bit uncomfortable.