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Dereci - No cause for Alarm

Forum to discuss all things Blarney | Ireland immigration

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe, Administrator

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walrusgumble
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Dereci - No cause for Alarm

Post by walrusgumble » Wed Nov 16, 2011 2:43 pm

Dereci Judgment.

Some explanation to Zambrano, but still no clear guideline on Genuine Activity. It was a partial success (ie partial limitation on Zambrano) for the Member States. Many people here won't be too worried, for now, about this judgment, especially if other parent is non EU . I am sure there will be another EU case on this. THe Commission again sided with the States.

Obie
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Post by Obie » Wed Nov 16, 2011 7:01 pm

Well i will not say it was a totally lost case.

Mr Deceri did won his case under the Ankara policy.

The court did not preclude the fact that the applicant could secure residency under other EU instrument or ECHR policies.

It stated an Obligation on the courts to access the case, under Article 7 of the Charter or Article 8 of the ECHR, if it found there was no denial of the substance of the right of the Union Citizen.

That is certainly not something some zenophobic memberstates or hater of immigrant will find appealing.

Furthermore, it does not limit Zambrano in any meaningful sense, as McCarthy has more or less done that.

There Irish authorities cannot conclude from this, that they can stop children from coming to Ireland with their parents.

Zambrano was seeking to protect children from not being removed from the Union or exiled to another memberstate.

The facts of these cases are different. In this case, we had adult seeking to benefits from Zambrano, when they were dependant on their parents as opposed to the other way round.
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walrusgumble
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Post by walrusgumble » Wed Nov 16, 2011 7:19 pm

Article 8.1 has to be considered anyway,remember article 8.2.States won't loose sleep over this actually. germans would be more worried than Ireland over Dereci bit. It is simply a rehash of McCarthy,ie move to another part of europe ie deprivement. ecthr talks about a similar idea, insourmountable obstacles. As for stopping Irish citizen children returning,no one disputes that really in light of Zambrano, thats Shatter's idea (wonder will many still cheering him on).people might still have metock if she is an eu citizen in another state. zambrano prevents removal from Union only.your misinterpreting both dereci and zambrano slightly.its another blow to the reverse discrimination parade on interpretation of article 20 & 21
Last edited by walrusgumble on Wed Nov 16, 2011 7:35 pm, edited 2 times in total.

Morrisj
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Post by Morrisj » Wed Nov 16, 2011 7:30 pm

I saw the judgment this afternoon and just as i thought,Mr wals would be the 1st person to post it on the board... no cause for alarm,what a smart comment..
Denial of genuine enjoyment and respect for family life was the key point from the Judgment,read properly again!domestic courts will have to make their own interpretation regarding the key points note where it stated not to be assimilated purely on internal situations,eachmember state can now make their own discretional application,so simple as ABC
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walrusgumble
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Post by walrusgumble » Wed Nov 16, 2011 7:39 pm

Morrisj wrote:I saw the judgment this afternoon and just as i thought,Mr wals would be the 1st person to post it on the board... no cause for alarm,what a smart comment..
Denial of genuine enjoyment and respect for family life was the key point from the Judgment,read properly again!domestic courts will have to make their own interpretation regarding the key points note where it stated not to be assimilated purely on internal situations,eachmember state can now make their own discretional application,so simple as ABC
You can start apologising for being proven wrong on the law & your groundless accusations from earlier. I know that the latter would be tough for you, so refrain from uttering my name or even discuss on this thread. Idiots are not wanted

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Post by Morrisj » Wed Nov 16, 2011 8:08 pm

you must think am competiting with u regarding whatever law you are talking about mr wanna be lawyer...later would be tough for me,ok am saying in french for u to understand,Tu es Irishtom,just as u said its a general board so u cant stop me from commenting but as it is,you are their tiny god here cos the admin keep getting me banned but i keep getting thru which i really dnt how i did it myself and thanks for calling me an idiot,the admin and co cant see that,dnt know if they are blind.Peace
We are nothing but like pencil in the hands of our creator God Almighty

walrusgumble
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Post by walrusgumble » Wed Nov 16, 2011 9:15 pm

Morrisj wrote:you must think am competiting with u regarding whatever law you are talking about mr wanna be lawyer...later would be tough for me,ok am saying in french for u to understand,Tu es Irishtom,just as u said its a general board so u cant stop me from commenting but as it is,you are their tiny god here cos the admin keep getting me banned but i keep getting thru which i really dnt how i did it myself and thanks for calling me an idiot,the admin and co cant see that,dnt know if they are blind.Peace
i am not irishtom, you were given more than 5 days to prove it and have failed, no body agrees with you. as for interpretation of the law,again i have been justified,again everyone goes quite. a lawyer is someone who studied law n have a law degree,not just solicitor n barrister,hence why the latter terms are distinguished in ireland.so wannabe? no, technically, but I never claimed that I was a lawyer, anyway. Either way, I was correct in anything that I responded to you about. as for competing, spouting "haha" is not even debating, you loose every time you utter a word.no go away and stop making a fool of yourself
Last edited by walrusgumble on Thu Nov 17, 2011 11:29 am, edited 1 time in total.

Obie
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Post by Obie » Wed Nov 16, 2011 10:11 pm

There is nothing in Dereci that states that children who are abroad do not benefit from Zambrano. Any suggestion that Dereci Judgement states that, is unfounded and potentially misleading.

The facts of the circumstances in Dereci are different entirely in material scope to that of the Zambrano.

In Dereci the children are adult, dependent on the Union Citizen, the other children from the other cases were not the biological children of the non-EU spouse, neither was he playing and substantive role in their lives.

If anything Dereci enforces the view that Zambrano was aimed at preventing a Union Citizen from being kicked out of the whole of the Union.
Debarring the parents of a minor Union Citizens from returning to the Union, will have the same effect as removing them out of the Union.

MorrisJ and Walrusgrumble, i implore you too to engage in civilise debate, i dread the possibility of having to ban the pair of you.

This constant animosity towards each other is bring the forum into a state of disrepute.
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Post by walrusgumble » Thu Nov 17, 2011 10:26 am

Obie wrote:There is nothing in Dereci that states that children who are abroad do not benefit from Zambrano. Any suggestion that Dereci Judgement states that, is unfounded and potentially misleading.

The facts of the circumstances in Dereci are different entirely in material scope to that of the Zambrano.

In Dereci the children are adult, dependent on the Union Citizen, the other children from the other cases were not the biological children of the non-EU spouse, neither was he playing and substantive role in their lives.

If anything Dereci enforces the view that Zambrano was aimed at preventing a Union Citizen from being kicked out of the whole of the Union.
Debarring the parents of a minor Union Citizens from returning to the Union, will have the same effect as removing them out of the Union.

MorrisJ and Walrusgrumble, i implore you too to engage in civilise debate, i dread the possibility of having to ban the pair of you.

This constant animosity towards each other is bring the forum into a state of disrepute.
Before discussing the case and clarify what I meant, let me address your last sentence, because that problem is , partly the moderators making, something that has being brought to your attention and you patently refuse to address it, making you unfit to moderate.

A poster has made allegations as to the identity of other poster. As usual, they are groundless. He was given 5 days to prove it. The only response is continued faceless and repeated response. On any other website, you actually have to provide evidence or publicly withdraw the comment. Don't think that libel laws against websites themselves can not work in relation to comments allowed to be made by others.

Moderators were also told to address that allegation. Secondly that poster along with another poster angel something (who on numerous occasions used fake id titles when registering to avoid the original ban that he got) have attempted to provide completely false and groundless arguments on the law.

I have in a very open and honest manner, and with supportive documentation when necessary rebutted the tripe. Never have these people responded back on those aspects, but simply ranted off on another tangent.

Alot of you have mouthed off with like keyboard warriors on my comments which have being proved justified in light of recent cases. I deserve to be given the benefit of the doubt when discussing the law and the likely outcome in the Courts. You respond in a stupid ignorant manner, I will return in kind, but at least with evidential back up. Many people here refuse to debate, especially when the law and facts don't help them but have no problems. They will blame everyone else bar themselves, and some possess ridiculous self entitlement that there own country would laugh at. I have shown to have no problem to criticism my country when justified, but this self serving nonsense like beloved can not and will not be tolerated and accepted, funny it is only raised when you (others) are unable to accept or deal with a fact put to you. Why bother responding?, you get no prises for having the most messages.

Your task is to moderate. Rules should be put in where if someone wishes to discuss something, as oppose to asking a question, they should make it clear that their statement is either an opinion or suggesting its advise on their interpretation of the law. Any such statements should be supported with sources. Google is only a click away, most documents and facts, especially on EU law can be found on websites and it won't take long to read documents. You fail to comply with the basics of any other website you should be suspended or temporarily banned.

You should resign from your role as a moderator, because you have allowed this crap, which you, as a poster in your pre moderator days, tended to get involved in as well. You make a statement back it up. You can't do that, withdraw the statement


All that is demanded, is an investigation into groundless comments, and a demand, that in the future, people should provide documentary evidence/links in support of their views. Then, people won't get exposed to idiots branding others as lovey/dearly beloved etc.


Now as for the cases, let me clarify what I meant.

1. Zambrano: If the child's parent had been deported, in reality, the child would not only have to leave their country of birth and citizenship, but the Union itself. This is because, in reality, it was highly unlikely that the family could stay in Europe on the only other ground, ie live in another country and possess full financial self sufficiency via the Chen, Baumbause, Ibhraim etc cases.

But of course, naturally, it also stops the country from removing the family from country of nationality. However, if there was evidence that another EU country could be accepted, let us say, for hypothetical situation, one of the parents were EU citizens and did not comply with Directive 2004/38 EC in another EU state (thus non eu was unable to rely on that relationship, for now) you could not say that the child's right to reside in Europe was genuinely deprived. This was somewhat clarified in Dercei, as in, Zambrano is not much use, if one of the parents is an EU national/the same nationality as the child and lives in the same country. The effects of McCarthy (looking at eu adult parent) may kick in

EU Courts justified the interference with National Sovereignty(on an exceptional basis) to justify why the matter was not an internal matter. The justification was that in reality, the child would have to leave Europe. The child itself will never be deported, but in reality they are. Personally the child's right to stay in the country is not in dispute, but in practice it is. The case is about giving derivative rights to the parents on the basis of the child's status, as the child depends on the parents. Immigration wise, the non eu parents are depended on the child, just like Dercei.

As you know, the Irish , or should I say Alan Shatter, who people prematurely championed despite my warnings, believes that it can not and should not apply where families left Ireland years ago and can't come back, I can see the argument, but I have previously acknowledged that I don't believe that this will or could fly, even before the Irish Courts.

2. Dereci: I had mentioned McCarthy earlier and the limations of McCarthy. You correctly pointed out that as per this Dereci case that there was no further limitation of Dereci because McCarthy did this. Very true. What I meant was Dereci confirms and spells out McCarthy, but in a more relevant case, ie where a child is involved.

Again, the non eu parent needed to rely on Zambrano to stay, because, even if in a relationship with the eu parent, they could not rely on Metock due to McCarthy. There was also the issue that the Non EU parent had no evidence that he could support the child (it would be interesting if he could) .

The main driving point was the fact that eu nationality of the parent. Once they looked at her, it was irrelevant what the child was. Afterall, only parents can exercise the child's rights; cases like Chen and Zambrano were used to save the child. There was no need here because at least one of the parents was an EU citizen, therefore, the child would never be at risk of being made to leave the EU, unlike Zambrano, whose parents were non EU. Like McCarthy, Dereci and Co did not show that there was a likelihood that the EU citizen could not move to another eu state and rely on Metock, and later Singh (to return home). It would have been interesting if they could , because McCarthy acknowledged one element in Zambrano. ie genuine loss of status within the EU.
Obie wrote: There is nothing in Dereci that states that children who are abroad do not benefit from Zambrano. Any suggestion that Dereci Judgement states that, is unfounded and potentially misleading.
What part of no body is disputing that (ie your earlier comment which you have now repeated). Even I have previously made the comment that such an interpretation on Zambrano would be a bridge too far. Dereci has no relevancy on people still relying on Zambrano, if, both parents are non eu's or at least where none of the parents are citizens of the country of the child's birth. Where have you got the idea that somebody disagrees with you on this point? My last post even noted that I agree with you.
Obie wrote: The facts of the circumstances in Dereci are different entirely in material scope to that of the Zambrano.
In reality, the only, but crucial difference in the facts between Zambrano and Dereci is that one of the parents is an EU citizen, a citizen of the country of the child's birth, thus making any potential requirement to leave that country avoidable. The second potential, as I don't want to generalize here, though would be confident that its a majority case, is that, very few parents relying on Zambrano can and will be able to support their child financially without the assistance of the state, thus making "dependence" laughable. But, Dereci said, that does not matter. Both cases share the common issue, providing rights of residence to the non eu parent because of the child's status.

But yeah, facts are different. My comment, "no cause for alarm" referred to the reality that many here involve parents who are solely in the Zambrano web of facts. Again, your right, there are other ways for the non eu to get status, eg marry the parent who is an eu and rely on favorable domestic laws or move to another eu state to avoid mccarthy.

As for the facts of Dereci, that preliminary ruling involved 3-4 other cases bundled together, I recommend you read the facts of each case, because your review of the facts is inventive to say the least. There is nothing to suggest that Dereci failed to act as a father (bar not having money, but there is more to money in order to class as dependent) Dercei as oppose to the adult, Kokallri, is no different to what is being sought from Zambrano, bar the nationality on the other parent (who is eu)

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Post by acme4242 » Thu Nov 17, 2011 10:49 am

walrusgumble, have you stopped your medication again,
you cannot make demands from anyone.

As ever, its very difficult to read your tirade.

Is it possible for you to switch to become supportive and clam
instead of confrontational and angry towards posters.

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Post by walrusgumble » Thu Nov 17, 2011 11:46 am

acme4242 wrote:walrusgumble, have you stopped your medication again,
you cannot make demands from anyone.

As ever, its very difficult to read your tirade.

Is it possible for you to switch to become supportive and clam
instead of confrontational and angry towards posters.
Addressing every single comment made towards me, as oppose to the usual standard of ignoring the comments and isolating one sentence to suit one's argument, is now a tirade?

You don't condone Morris?

Point out what part you do not understand. It has been written very clearly for your benefit. Is it the language used, or the fact that you are not privy to the problems discussed here, that makes you fail to understand the root as to what has been said? (genuine question) This is often written on a mobile when traveling

Funny enough, acme, your understanding still appear in good working order when you are trying to "shout down" (not literally) any argument made by me, when it does not suit you. Selective are we?

Your another who goes quite when you run out of ideas to argue against ,like Morris. Please don't be getting bitter.

As for demands, yes, demands are a strong word. But, the options are:
I can take legal proceedings against the site for unproven comments made. It would the site owners and not people hiding in another country who get it. A demand , which by the way is nothing new, are actually in the charter rules and they are no different to any other site. You know what rules are don't you? The Moderator seeks calm etc. He is right, but you don't get that when posters ignore the basic rules of debate ie make a statement and back it up. If you fail, drop it or withdraw it. There simply helpful examples. Alternatively, make a complaint to the registered owners. None of these options I wish to take. Deal with the source of the problem now instead.

That comment regarding demand is very hypocritical. If Irish Tom Spouted similar nonsense, you lot would rightly be baying for banning etc.

People are going to disagree with others here. They will do so for the genuine and honest purpose ie state the law correctly. They must provide evidence to support that so the other side can either take it as face value or analysis it. Bone Fides are then established. It removes the predictable accusations thrown by some uneducated people regarding beloved. You not think that is a fair recommendation?

As for my stance, your the people asking for advice or discussing law. Some are very quick to make ridiculous uneducated comments. People, including the moderator, have often proved incorrect advice. All that I did was provide, where necessary, the likely outcome of a case or the correct statement of law no more. It is often, sadly for you lot, not supportive. But if lucky enough, you will find away around it.

Being supportive it not telling lies. I was happy to say nothing on this case today, bar a decent discussion with Obie. Let you lot read the case for themselves and make your own judgment. If I became supportive to people like Morris, with would be condescending. It would be like treating him like a special needs person (and that would be offensive to them). Best of ignore him I suppose? I will never have respect for dishonest people (regardless of whom they are btw)

But hey, never let a self serving corresponding rant get in the way yeah. Fair play the people like Morris, letting words like beloved become utterly useless in its meaning and thus soon turning such a word (and horrible idea/attitude) become respectable. That point of argument won't always win the day, if ever. The problem is still there.
Last edited by walrusgumble on Thu Nov 17, 2011 12:01 pm, edited 3 times in total.

walrusgumble
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Post by walrusgumble » Thu Nov 17, 2011 11:54 am

Error

IQU
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Post by IQU » Thu Nov 17, 2011 12:30 pm

can you guys please clearify.i am non eu .my partner is eu .we have child.he have eu citizenship but not irish.so can i apply for residence based on my child .because my chid have eu citizens.can you please clarify ?????????????

walrusgumble
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Post by walrusgumble » Thu Nov 17, 2011 4:49 pm

IQU wrote:can you guys please clearify.i am non eu .my partner is eu .we have child.he have eu citizenship but not irish.so can i apply for residence based on my child .because my chid have eu citizens.can you please clarify ?????????????
The Child is not an Irish Citizen, Zambrano never ever intended to be applied in that way. Zambrano concerns people who are minor citizens of a country that they were born in. (so if a Child was French, and you lived with child in France, you could be ok) Even if Zambrano did apply to all EU citizens,I could not see how Dereci would not apply.(Dercei case involved Austrian children and parent in Austria - So here, Irish parent/'Child all resident in Ireland ) it would make absolutely no sense to allow Dercei apply against Irish Parents and not apply against other EU parents as it would utterly undermining this "reverse discrimination" theory, that has already being ripped apart by McCarthy and Dereci.


If you base residence on Child, then, you need to rely on the case of Chen 2004.

The problem is, the States may not buy Chen that either, because, your partner is an EU citizen (unlike Zambrano - I am not suggesting Dereci is relevant here.)

Zambrano, and most residency based caselaw - (so people, don't rant on about Avello, it is irrelevant, as too is H'Doop and Gryckleck etc) on EU citizenship has clearly only favored non EU people as oppose to EU's you don't exercise their treaty rights (exception being Ibrahim / Teixeria) Something I pointed out that would potentially happen and discriminate in earlier discussions on Zambrano; which were lambasted. Its coming more clearer now.

If relying on EU law, as oppose to Domestic, you need to try on rely on relationship with partner. Is she complying with Article 7 Directive 2004/38 EC. If she does not now, did she ever? (looking for Ibhraim / Teixeria , Article 7 of Regulation 1612/68 angle.

In short, unless there is a serious case it is now doubtful for a non eu to rely upon the child's citizenship IF the other parent (obviously is active) is an EU citizen. Last resort stuff it seems.

The relationship with partner is the banker. Either way, all family law rights should be obtained (eg guardianship) as you are not married and could not rely upon Article 41 of the Constitutions Protection (de facto relationship don't enjoy such protection - regardless of the ECHR caselaw, which is not 100% implemented into Irish law.)

What is your partner doing? Can you rely upon Directive 2004/38 EC.?

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Post by Morrisj » Thu Nov 17, 2011 7:46 pm

This is strange,now i can access the site again @wals, who gave me 5 days to prove it?if at all thats true,cant you see the level of your madness?If the moderators that can check the ips didnt do that,how then do they want me to prove it if its really true i was given 5days.Between me and you,we both know you are Irishtom simple.The mistake u made regarding the 2 user-id,a year old baby wont make that mistake,if the mod were smart enough to check the ip used in Reg. both user-id,you would ve been exposed
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Post by Monifé » Thu Nov 17, 2011 7:51 pm

Morris, no offence, but would you please give it a rest. You are cluttering up this forum with random nonsense and provoking fights with other people.

I am of the opinion Walrus is NOT IrishTom, but if your opinion differs, that is your opinion. Lets please leave it at that and stop ruining the threads for other users.

Can we please keep discussion on topic and without sly jabs or insults at other members not forgetting that if you continue, you may get banned.
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

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Post by Morrisj » Thu Nov 17, 2011 7:53 pm

@Obie, I was gonna say aint u reading my comment but with what i observed from mr wals comment,you really dnt know what is happening so lemme break it down for you,I was banned by your so called superiors so saying i will get banned is nothing new to me.Again i now understand your so called superiors are the one preventing you from taking action against wals cos it is very clear mr wals is jealous of your position on this board so be careful,thats the best advice i can give you.
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Post by Morrisj » Thu Nov 17, 2011 8:00 pm

@monife you should be completely ashamed of urself,you scared of wals like the others?Ffs mr wals has been the one using weird comments even went as far posting weird comments against a moderator and you think thats ok?so you basically saying Mr wals hasnt erred using unacceptabe words even against the moderator,people like you knows nothing, whatever A says u follow whatever B says you follow,you have no direction so you should shut up and leave this btw me and wals thank you
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Post by walrusgumble » Thu Nov 17, 2011 10:29 pm

Morrisj wrote:This is strange,now i can access the site again @wals, who gave me 5 days to prove it?if at all thats true,cant you see the level of your madness?If the moderators that can check the ips didnt do that,how then do they want me to prove it if its really true i was given 5days.Between me and you,we both know you are Irishtom simple.The mistake u made regarding the 2 user-id,a year old baby wont make that mistake,if the mod were smart enough to check the ip used in Reg. both user-id,you would ve been exposed
return to the case reported in the irish times thread-2 weeks ago.there is no "if",the challenge to you n moderators was made.in civalised world morris, you can only make allegations when you have proof.you didn't.mods seem to think your talking nonsense.it was open to you to contact moderators to assist you.archives and all ip data can easily tracked down n a bit of work,locations.madness?read your own posts.withdraw the accusations.if you have nothing you say about this case go away

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Post by Obie » Fri Nov 18, 2011 12:41 am

This thread will now be closed as it is achieving no purpose.

Walrusgrumble and MorrisJ there will be no further warning for the pair of you from now on.

I have important things to do, and people to provide help to, than having to monitor you grown up adults.

Banning people is a step i don't like taking until all other option have been explored. It seems like i am slowly running out of options for the two of you.

I remind you all that we have a responsibility to show regards and courtesy to one another.

It is not strictly speaking a requirement that people should be able to write perfect English in order to contribute on the forum, neither is their a requirement that any comment should be corroborated.
Of course it will be wrong for people to deliberately provide misleading information, but as a community we have to correct one another in area we think they have made mistakes, and people should welcome and appreciate constructive criticism and correction and not react in a defensive way and manner.
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