Kumar Case

I think the Kumar's Case is inherently weak as he has already been deported from Belgium and the UK and was illegal in Ireland. There is a good chance that he would not win his case in the Supreme Court.
I am afraid that 1000 couples are going to get deported just because Kumar has a dodgy background. If anyone here is using Derek Stewart who is also Kumar's attorney, they should ask Derek to put Kumar's case on hold for now and take someone else's case which is stronger to the High court or supreme Court. He can then use that judgement to help Kumar as well.

Judgement for kumar case
Appologies if already posted here before


Judgment Title: S.K. & Anor -v- Minister for Justice Equality & Law Reform & Ors

Neutral Citation: [2007] IEHC 216


High Court Record Number: 2006 758 JR

Date of Delivery: 28/05/2007

Court: High Court

Composition of Court: Hanna J.

Judgment by: Hanna J.

Status of Judgment: Approved




Neutral Citation Number: [2007] IEHC 216
The High Court
Judicial Review
[2006 No 758 JR]
Between/
S. K. and T.T.
Applicants
and
The Minister for Justice, Equality and Law Reform and
Ireland and the Attorney General
respondents

Judgment of Mr. Justice Hanna delivered on the 28th day of May, 2007

This is an application for judicial review on behalf of the applicants to whom leave to bring this application was granted in the form of the amended statement of grounds. The said leave was obtained from Finlay Geoghegan J. on the 31st July, 2006.
The first named applicant claims that he has a right of residency in this jurisdiction, being married to an EU citizen who is resident and working in Ireland. The applicants complain that the instrument under which the first named applicant’s right of residency was refused, The European Communities (Freedom of Movement of Persons) Regulations 2006, S.I. No. 226/2006, is ultra vires Directive 2004/38/EC which deals with the rights of citizens of the European Union and their family members to move and reside freely within the territory of the Member States. Specifically, the applicants contend that the requirement in the said Regulations, that a spouse or family member who is a national of a non-EU state be lawfully resident in another Member State before entering Ireland either with or without a view to joining a spouse who is a national of another EU state, goes beyond the provisions of the Directive to such extent as would require primary legislation to be enacted into law. Further, the applicants argue, in the given circumstances of S.K.’s case, refusal of the right of residency and his removal from the State to the Kingdom of Belgium is contrary both to their respective rights under the Irish Constitution and under the European Convention of Human Rights and Article 8 thereof in particular.
The first named applicant is a citizen of India. The second named applicant is a national of Estonia, a Member State of the European Union. The applicants were married in this State on 18th May, 2006, having been in a relationship, according to the applicants, since 2003. Unsurprisingly, the description of the applicants’ prior relationship is not challenged since it occurred mostly out of the jurisdiction. Further, no issue has been raised with regard to the validity in legal terms of the marriage.

Background facts
The relevant history of the case is as follows. Whilst still a minor aged fifteen, the first named applicant applied for asylum in Belgium and was refused. He then somehow or other entered the United Kingdom and resided there illegally for a period of approximately three years. It was during this time, we are told, that the relationship between the applicants grew. According to applicants’ solicitor, Mr. Derek Stewart, who swore an affidavit on behalf of and on the instructions of the applicants, the applicants formed an intention to marry when in the United Kingdom and he was instructed that some contact was made with the Home Office in the UK on their behalf, seeking permission for their marriage. Mr. Stewart in para. 6 of his affidavit sworn on 27th June, 2006, says as follows:-

“It seems that in frustration with the length of time it was taking to regularise their position and formalise their marriage, the applicants travelled to Ireland in or about January, 2006, with the intention of the second named applicant finding employment in the State, formalising their marriage and setting up their family home here.â€

archigabe wrote: If anyone here is using Derek Stewart who is also Kumar's attorney, they should ask Derek to put Kumar's case on hold for now and take someone else's case which is stronger to the High court or supreme Court. He can then use that judgement to help Kumar as well.

Of course he couldn't do that! He is instructed to act in his client's best interests, not yours.

His client's shady past is going to mess with other 1500 couple's application as well as his other clients. IF the solicitor is someone worth his salt he will know which battles can be won and which will sink everyone.

He needs to act in his client's best interests, end of.

If you bother to read through my previous posting, I mentioned it's also in his client's best interests for someone else's case to be brought forward so he can also benefit retroactively. Thanks anyway for your First comments in the Ireland section.

avjones wrote:He needs to act in his client's best interests, end of.

Sometimes do what's in his best interests he might just need to look at another case first. Because the way it stands now it seems to me like Kumar is going down & taking a lot of people with him!!!

for what its worth.. I am with archigabe on this one.

Here's the key passage in the JIA Case which gives hope to everyone in this difficult situation.

http://eur-lex.europa.eu/LexUriServ/Lex ... 01:EN:HTML

Case C-1/05,

REFERENCE for a preliminary ruling under Article 234 EC, made by the Utlänningsnämnden (Sweden), by decision of 30 December 2004, received at the Court on 4 January 2005, in the proceedings

Yunying Jia v Migrationsverket,The Court (Grand Chamber) hereby rules:

1. Having regard to the judgment in Case C‑109/01 Akrich [2003] ECR I‑9607, Community law does not require Member States to make the grant of a residence permit to nationals of a non-Member State, who are members of the family of a Community national who has exercised his or her right of free movement, subject to the condition that those family members have previously been residing lawfully in another Member State;

Good and valid point Archigabe

Like the Jia Case, the Chen case breaks new ground in residency issues. This case is applicable if you are the parent of an E.U citizen child.
This could be useful infomation for the Punjabi-Polish couple who were featured in last week's Irish Times, the Punjabi guy being under threat of deportation.
http://www.immigrantcouncil.ie/chen.pdf
http://www.ukvisas.gov.uk/servlet/Front ... 8489185556
http://www.epha.org/a/1476

In Jia the Court does appear to want to confine Akrich to its facts but doesn't overrule it entirely. All it states is that Member states are not required to impose the condition of previous legal residence in another Member state. It is silent on whether they are permitted to impose such a condition if they so wish. Watch the AG's opinion on this one - he seems to have changed his mind from Akrich and would favour the Irish government's position. But as I said it appears that the Court wants to confine Akrich to a sort of abuse of rights case.

Which of course makes the present case a less than ideal candidate for an attempt to finally get past Akrich. As stated in the High Court judgement there are far too many similarities in the case to allow one to ignore Akrich. Given the brevity and inconclusiveness of the Jia judgement it may be that the Court of Justice is divided on this one and putting another Akrich-like scenario in front of them may persuade it to uphold Akrich. Of course I accept that the lawyer has a professional duty to act in his clients' interests but the circumstances are unfortunate.

Just another thought - following Reed shouldn't EC nationals be treated equally regarding reunification with family members as Irish citizens. The Irish government should therefore grant to EC residents (at least workers, possibly all citizens) the same benefits of residence for family/dependants as nationals. This is supported by the ambiguous reference to Swedish law in Jia. Following that one would assume that an EC national should be able to initiate the same procedure to gain residency for a spouse as an Irish citizen, or at least an equivalent. Now I know little to nothing about Irish immigration law (sorry this makes me a bit of an imposter) but I imagine this may be a more advantageous position than being a non-national resident seeking residence for a spouse, which, by the sounds of it, is quite a discretionary procedure. This should satisfy both the EU in ensuring equal treatment and worker mobility, respect the Member States competences regarding immigration and put those EU nationals genuinely seeking family reunification in a better position.

As I said I'm quite ignorant regarding Irish immigration law but there's just a couple of thoughts.

hey im just wondering does anyone know where i could find any detailed analysis on this case other than the case itself, or what their next intentions are, whether its going to the supreme court or even do they intend to take it all the way to the ECJ

It seems to me now after re-reading the Directive 2004/38/EC, that residency should be granted to spouses irrespective of nationality...ie it does not matter that the 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 legis-lation, 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

thanks for the info,bt mate if u know,then they should abt it,wats the fuzz then?....its crystal clear they dnt want foreigner here....

What would a ruling in the Kumar case mean for the rest of us in the same situation. If it goes in his favor, would we all have to re-apply for residence card? Or, would we have to get a lawyer a do what Kumar did? What if it goes against him? Would another case, perhaps a stronger one, be brought up?

It depends on exactly what the judgment says.

avjones wrote:It depends on exactly what the judgment says.

Any update on this case since the early October?

I have looked for, and not found, a case report on it.

This is the sight where they announce Supreme Court decisions. I imagine Kumar's will be here when it is announced.

http://courts.ie/Judgments.nsf/Webpages/HomePage

The case was supposed to have come up for hearing in the beginning of october, and I even saw it listed on the court notice board when I went there on the day of the hearing. But apparently the case has not come up for hearing, and I suspect Derek Stewart Solicitors have wisely decided to move some other stronger case to be heard first so the judgement could benefit kumar as well.

Still it's mind boggling that the DOJ/High Court would apply the decision on a dodgy asylum case to people in Ireland legally on spouse visas.
I wonder if it's plain unwillingness to treat E.U citizens as equal to the Irish.

We were offered an out of court settlement by the DOJ to drop our case against them by offering us the same 'dodgy' 2 year stamp 4...I don't know if this stamp 4 is something they just made up on the spur of the moment to keep us quiet, and how reliable it can be in a couple of year's time when it has no real legal backing.