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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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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
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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
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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
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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.
Smooth seas do not make skilful sailors

koded
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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!

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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
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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
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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.
Smooth seas do not make skilful sailors

Monifé
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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

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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
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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
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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
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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
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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

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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.
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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

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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.
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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
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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

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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.
Smooth seas do not make skilful sailors

Monifé
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Post by Monifé » Fri Oct 01, 2010 11:12 am

Obie wrote: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.
I think that would be one of our last options as I would have to leave my job, relocate for at least 6 months, find a job up North and then when we return, have to look for a job again.

I think we are going to go with High Court Judicial Review proceedings, we just have to wait to hear back from Senior Counsel and then meet with our solicitor (of Brophy Solicitors) to discuss same.

I don't know how quickly we could get this ball rolling though. Obie have you or do you know anyone who has brought the DOJ to court and how long it takes to get the ball rolling.

If he is issued with a deportation order, can we get it revoked or will it be too late?

Also, as you know he is a failed asylum seeker, but he has not applied for subsidiary protection or leave to remain (section 3 letter) as our solicitor got the section 3 letter paused basically pending the outcome of the EU treaty rights application. Do you think the section 3 letter will be re-activated or he would be issued with a deportation order straight away?

Seriously getting worried about this now :(
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 » Fri Oct 01, 2010 7:16 pm

Monifé wrote:
Obie wrote: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.
I think that would be one of our last options as I would have to leave my job, relocate for at least 6 months, find a job up North and then when we return, have to look for a job again.

I think we are going to go with High Court Judicial Review proceedings, we just have to wait to hear back from Senior Counsel and then meet with our solicitor (of Brophy Solicitors) to discuss same.

I don't know how quickly we could get this ball rolling though. Obie have you or do you know anyone who has brought the DOJ to court and how long it takes to get the ball rolling.

If he is issued with a deportation order, can we get it revoked or will it be too late?

Also, as you know he is a failed asylum seeker, but he has not applied for subsidiary protection or leave to remain (section 3 letter) as our solicitor got the section 3 letter paused basically pending the outcome of the EU treaty rights application. Do you think the section 3 letter will be re-activated or he would be issued with a deportation order straight away?

Seriously getting worried about this now :(
first off, don't start panicing over the repatriation matter. he will have to make an aplication for leave to remain or a new one outlining his family relationship. that will take a while for them to consider the application, up to one year

the courts, that can take a year-year and a half or two to be resolved. i doubt you are the only case like this, so it will be put in a bunch for testing. that said the case could be looked at quickly considering its eu and important. its all fine and well for britain but this does have impact for say people in the north who may have connections to both jurisdictions. who knows, even big ian might one day take the constitution and say ahem to the republic instead of aaaaaahhhh practising his "eu treaty rights" (oh how partionist). it also ignores the fact that chen (your case is different as you are an adult) never set foot in dublin but still when born in belfast was granted irish citizenship (though that does not related to gfa). it completely igonores clear policy of the right to dual citizenship.wonder what would their attitude be to american born and bred who have irish passport but live in america? after all they never stop saying how great they are new they head over for a piss up, ops sorry "business affairs"

does ireland even have/had a policy or is it just now, coping britian?

last two options, get married either way because basically, ireland are not obliged to recongise these de facto relationships. if you are really that concerned (i dont mean this in a bad way) look for work (if you can) up north. this a good spot and decent place to live

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Post by Monifé » Sat Oct 02, 2010 12:17 am

Thanks for the clarification on the repatriation matter, Walrusgumble. lets hope thats what happens and GNIB dont try and be sneaky.

Re: our soon to be high court case, hopefully our firm will be able to get a priority hearing (as they have done in previous cases) because of the "possible" impending deportation order.

Thanks for the advice everyone, fingers crossed for us anyway. I'll keep ya's posted..
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

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Post by Monifé » Wed Oct 13, 2010 3:44 pm

Just a quick update.

Application for leave (High Court Judicial Review proceedings) granted.

Barrister thinks we should have our hearing in Jan/Feb and he is hoping to regularise my partner's status in the meantime. Although I dont know how he will manage that.

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

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Post by acme4242 » Tue Oct 26, 2010 1:12 pm

According to the papers, the Shirley McCarthy case is being
heard this Thursday.
[url=http://www.sbpost.ie/news/ireland/residency-case-could-affect-irish-in-britain-52458.html]sbpost-Residency case could affect Irish in Britain[/url] wrote:
http://www.sbpost.ie/news/ireland/resid ... 52458.html

Residency case could affect Irish in Britain
24 October 2010

More than a million Irish citizens living in Britain could be affected by the outcome of a case before the European Court of Justice on Thursday.

The Supreme Court of the United Kingdom has asked the Luxembourg court to rule whether Irish citizens who also hold British passports can claim residency in Britain and the North under EU regulations.

Shirley McCarthy, who was born in Britain of an Irish mother and holds dual British and Irish citizenship, is appealing against a decision of the English Court of Appeal.

The 51-year-old mother of three had appealed to Britain’s Asylum and Immigration Tribunal against a 2004 decision to refuse her a residence permit. Her husband, George McCarthy, a Jamaican citizen, had also been refused a residence permit and ordered to leave Britain.

If Mrs McCarthy had been granted a permit, her husband would have been allowed to stay in Britain.

McCarthy claimed she was entitled to a residence permit under the 2000 Immigration (European Economic Area) Regulations because she is a national of the European Economic Area (EEA)w ho has lived in the UK for more than five years.

The regulations apply to EEA citizens who move to a member state other than their own, and to their families.

But the tribunal had ruled that she was living in Britain as a British citizen, not an EEA national, so the regulations did not apply.

In the Court of Appeal two years ago, Lord Justice Pill concluded that ‘‘a United Kingdom citizen resident in the United Kingdom cannot, by virtue of also having Irish nationality, claim a permit which may be granted by virtue of the directive’’. He dismissed the appeal.

A spokeswoman for the Department of Foreign Affairs said there were no accurate figures for the number of Irish citizens living in Britain who were also British passport holders.

She said next year’s census in Britain would - for the first time - establish the number of people living in Britain who were born in Ireland or held Irish citizenship.

[url=http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:011:0018:0019:EN:PDF]ECJ case Shirley McCarthy v UK[/url] wrote:

http://eur-lex.europa.eu/LexUriServ/Lex ... 019:EN:PDF

Reference for a preliminary ruling from Supreme Court of
the United Kingdom made on 5 November 2009 — Shirley
McCarthy v Secretary of State for the Home Department
(Case C-434/09) (2010/C 11/30)

Language of the case: English
Referring court
Supreme Court of the United Kingdom
Parties to the main proceedings

Applicant: Shirley McCarthy

Defendant: Secretary of State for the Home Department
Questions referred

1. Is a person of dual Irish and United Kingdom nationality
who has resided in the United Kingdom for her entire life a
‘beneficiary’ within the meaning of Article 3 of Directive
2004/38/EC ( 1 ) of the European Parliament and of the
Council (‘the Directive’)?

2. Has such a person ‘resided legally’ within the host Member
State for the purpose of Article 16 of the Directive in
circumstances where she was unable to satisfy the
requirements of Article 7 of Directive 2004/38/EC?

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