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Immigration, work visa and work permit discussion board
ESC
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Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, Administrator
How i wish you can resist this temptation from the Solicitor.I will encourage you to hang on,you are almost there.You name(s) will ever remain in the good side of history.archigabe wrote:We were told by our solicitors that we would be crazy not to accept the terms offered by the Department of Justice as we are getting everything we want/entitled to, including full costs,and our claim for damages can still go ahead in open court...I am in a bit of a dilemma as we want our case to set a precedent and help others, but our solicitors prefer we accept the terms offered.
but lets see how it pans out!I am very curious how the other settlement offers compare. And what do you think has motivated them to offer you a better deal?archigabe wrote:Our solicitor said that we've had the best deal so far that any of their clients have been offered
Yeah.., I raised that question & answer here@...But if you have resided in Ireland for 5 years legally (excluding student visa) whether on work permit or Spousal permit, you are automatically entitled to permanent residency and naturalization
those are stand up solicitors because nothing is a sure thing. Look at the JR for hsmp.archigabe wrote:Even though our legal bills were above 10,000 euros, we were never pressurised by our solicitors to pay up.So if your solicitors are quite confident of being able to claim costs from the government, you might not have to pay too much out of pocket (depends on your solicitors)
It seems the guy from the E.U treaty section personally came down to our solicitors and handed in the letter.because, if, the supreme court who will rule in kumar (who are very conservative these days) rules that regardless of facts of any case; that the regulation 3.2 is ok and does not violate european law or that it is justifible, you will bear a very heavy legal bill if you loose. not in your best interest as it will look badly if you have liabilities should you go for naturalisation in a few years. you basically got what you would have got if the application had been successful. best look after yourself and get on with life. further, the fact that you were offered a settlement might affect your locus standi to challenge casearchigabe wrote:Our solicitor said that we've had the best deal so far that any of their clients have been offered, and I don't know what to do when they seem to have lost interest in going further...If they had wanted to create a precedent, we would have been behind them 100%
My wife and I can relate to the stress that others are going through, and we would loved to have made the DOJ eat humble pie in public after the way the've treated us for the past one year. But we are still going to make our story known to all the immigrant support organizations, European commission and help them in any way we can.
We would have loved to have created a precedent and become famous like 'Surinder singh', 'Jia' or 'Chen'
just to make sure no one misinterpreted my last post i was saying it would be a good idea to accept settlement as their is also a possiblity that the supreme court will uphold the high courts decision in the kumar case. take it now intead of not having the right to work whilst waiting for the kumar case conclude - god knows when it will be heard. thats my point.microlab wrote:.......CERTAINLY violates main principle of free movement within the EU.rules that regardless of facts of any case; that the regulation 3.2 is ok and does not violate european law or that it is justifible,
Otherwise we wouldnt have all these discussions here and tons of pissed off people!
There are many people who are in a different situation compared to Kumar,they were already married or present in Ireland legally before the E.U1 application.i was saying it would be a good idea to accept settlement as their is also a possiblity that the supreme court will uphold the high courts decision in the kumar case. take it now intead of not having the right to work whilst waiting for the kumar case conclude - god knows when it will be heard. thats my point.
Francovich v Italy [1991] ECJ
State Liability when there is no domestic law on a matter to which a Directive relates or domestic law is totally contrary to EC law
Sometimes referred to as the 'Francovich Doctrine' or the 'Francovich Principle'. Francovich focused on the primary liability of Member State for a failure to fulfil a Community obligation. Although the Directive was not sufficiently clear and precise to be directly effective against the State, Italy was under an obligation to implement it under Article 5 EC. And since Italy had failed to do so, it was under a duty to compensate individuals for damage suffered as a result of its failure if
1.it is possible to identify the content of these rights from the Directive; and
2.there is a causal link between the State's failure to implement the Directive and the damage suffered by the individual.
Therefore the state was liable to compensate for loss as a result of the state’s failure to implement an EU directive within the required time limit.
He sued the Italian government for damages for the government's failure to implement an EC/EU Directive which would have eliminated (or reduced) his loss (for notes on the Directive concerned see Insolvency/government guarantees on insolvency of employer/wages, holiday pay etc ).
The local court in Vicenza referred questions to the ECJ and the final result was that the Italian government was ordered to pay compensation to Sr Francovich.
The case has enormously important implications for both individuals and governments.
For individuals it shows a way in which they may sometimes circumvent the problem of non-horizontal enforceability of EC/EU Directives (ie the problem that rights arising under a Directive cannot be enforced in national courts and tribunals against individuals and companies but only against governments and government bodies - see European Law/direct applicability of EC or EU measures ).
For governments, Francovich poses the risk of huge damages claims from private citizens if EC/EU Directives are not properly implemented within the time specified. A defence by a government that the time allowed by a Directive for its implementation was too short is unlikely to succeed and was rejected by the European Court in Dillenkofer & ors v Germany [1997] IRLR 60, ECJ joined Cases C-178 and 179/94 and C-188, 189 and 1990/94 (this involved delayed implementation of Directive 90/314/EEC which gives package holiday travellers rights in the event of their travel agents becoming insolvent).
For the Francovich principle to apply three conditions set out by the ECJ must be fulfilled:
1. the result prescribed by the Directive must entail creation of rights for individuals; and
2. the content of those rights must be ascertainable from the Directive itself; and
3. there must be a causal link between the failure of the Member State concerned to implement the Directive and the harm suffered by the individual.
The Court of Appeal confirmed these requirements in a case in 2007 in which it rejected an argument by Names at Lloyds who claimed they lost substantial amounts because of the UK government's failure properly to implement Directive 73/239/EC (governing regulation of the insurance industry) . The Directive did not give the Names rights as individuals - see Poole & Ors v Her Majesty’s Treasury [2007] EWCA Civ 1021.
Also,the State Solicitors agreed in front of Judge Finlay Geoghan that there was no point in maintaining confidentiality as our damages claim would be in open court. One of the good things about waiving the confidentiality clause is that the Supreme Court will be forced to acknowledge that there are people whose circumstances are quite different from Kumar.it would be a good idea to accept settlement as their is also a possiblity that the supreme court will uphold the high courts decision in the kumar case. take it now intead of not having the right to work whilst waiting for the kumar case conclude - god knows when it will be heard. thats my point.
