Stamp 4 Revoked

[cyberhawk]

Hey Guys,

I am a Pakistani married to a Polish citizen. We got married in 2012 and were living in Pakistan before applying for my Stamp 4 in 2016 which was granted. We have 2 daughters from the marriage.

We couldn’t stay much longer and had to come
back because of my mothers health as I was the only caretaker. We went back to Ireland but had to come back again for the same reason. We had a rented apartment all this time where EUTR wrote to us and asked about our activities. The same letter was sent to my lawyer who forwarded me a copy from his office email to which I responded and told EUTR I can’t come because my mother just had her open heart bypass. EUTR asked me for our documents etc in December 2018 which I sent via registered post and they were acknowledged.

In Jan 2019, my mother passed away and I wrote to EUTR about my plans to move to Ireland permanently in June. I booked our tickets and sent them the confirmed ticket copies which were acknowledged. I’m

We finally moved to Dublin in June 2019 and started our lives afresh. In September we moved to a new apartment. Here is where things went wrong for us..

Things were going on perfectly fine before November when I flew to Pakistan on 4th November 2019 and on my way back on 19th, the immigration officer denied me the entry saying my stamp 4 has been revoked and I can’t enter the country. He sent me back on the next flight within 2 hours. When asked why, he said we sent a letter to your address on 23rd October which you never responded to and it had 12th November as the date to revoke stamp in case I wouldn’t respond.

I told him repeatedly we have changed addresses and I never got any letter. I told him even my lawyer didn’t get any letter otherwise he would have forwarded me. I tried my best to explain but he didn’t listen and took my Garda card, put a cross of entry denial on my passport and sent me back. The guy checked my WhatsApp conversation with my wife, turned my phone off and didn’t let me talk to her or my lawyer.

When I came back, we filed an appeal against the decision which is under review. My lawyer told me that it can take 2 weeks which was fine but later he changed his stance and said it can take months and even years in some cases so you should apply for a visa meanwhile. I applied for the visa on 17th December to Join Family but just before that I had sent email to justice department on 12th December asking if I was eligible to apply for a visa while appeal was under review. (I sent them email because my lawyer was unsure about it and he just wanted me to apply because me and my family were getting desperate) - To my bad luck, visa department replied on 2nd January 2020 saying I can’t enter the country while my appeal is under review. Now visa application is also under process which will be denied.

Now I know EUTR was lenient with me while I wasn’t in the country because of my mothers health but I provided all they asked for and they acknowledged and agreed. We finally moved and the only thing we didn’t do was update our address in INIS. (We did however update in schools, banks and revenue and my understanding my updating in revenue would update it everywhere which was naive of me)

I gave all that history to try and better explain the situation and seek some assistance in this matter. We are left with two options. Either I call my family back to Pakistan or I just wait without any time frame in mind because that’s what I am told that review applications can take long. I am a very well traveled person and this cross has destroyed my immigration history plus we are forced to stay away from each other.

Please advise what route should I take.

Thanks.

[griffith]

Do you know the reason why your visa was revoked at first?

[cyberhawk]

You mean the Stamp 4, right? The letter he gave me at the immigration counter states I didn’t reply to their correspondence they sent in October and in that letter they asked for evidence of my wife’s activities in the state. He also noted that my stamp 4 was actually revoked right after it was granted because I left the state and my mother being sick isn’t covered under regulations. The thing however is that I traveled on that document at least a couple of times.

[griffith]

An appeal doesnt take months.
If i were you i would change the solicitor.

Were you deported with an entry ban ?

[cyberhawk]

I initially thought I was deported but my lawyer said this isn’t deportation but a denial of entry because my visa was not valid when I was entering the state. There is nothing mentioned about an entry ban!

[cyberhawk]

An appeal doesnt take months.
If i were you i would change the solicitor.

Were you deported with an entry ban ?

I am told it can take months if not years. I also read another thread here where the guy said it took a year before they rejected his appeal.

[Obie]

Did you return to Ireland in the company of your wife and children, or were they resident in Ireland at the time. If either of the 2 existed and the officer denied you entry, that is a gross infringement of community law and Judicial review must commence immediately to force the minister to return you to the state. Irrespective of whether or not the stamp 4 was valid, the officer has a duty to examine if you are a Qualifying family member with right to enter the state.

[cyberhawk]

They were present in Ireland as I went for just 14 days to meet my family. I asked the officer a gazillion times to let me talk to my wife but he didn’t. They only let me talk to her when Garda took me to board the plane and it was about to take off.

[Obie]

That is unlawful and your lawyer ought to have appreciated that. It is not a review matter, it is just plain unlawful.

[cyberhawk]

Thanks for the input. I appreciate that!

What are my options now? My appeal is under review and my visa is under process as well which will definitely be rejected.

My main goal right now is to be with my girls plus I want to somehow get a clean chit about what they put on my passport because all my travel history and future travel has been jeopardized.

[Obie]

Where a Union citizen or a qualifying family member who is not a national of a Member State does not have a valid national identity card or passport or, where required, the necessary Irish visa, the immigration officer shall, before refusing permission to enter the State to that person, give him or her every reasonable opportunity to do any or all of the following:

(a) obtain the necessary documents;

(b) present the necessary documents to the immigration officer within a reasonable period of time;

(c) corroborate or prove by other means that he or she is entitled to enter the State in accordance with these Regulations.

(6) Before permitting a person to enter the State as a qualifying family member, an immigration officer may require—

(a) in relation to a person referred to in clause (i) of Regulation 3(5)(b), documentary evidence of the relationship referred to therein,

(b) in relation to a person referred to in clause (ii) or (iii) of Regulation 3(5)(b), documentary evidence of the relationship and the dependency referred to therein.

I am incline to agree with the previous contributor, that the lawyer appears incompetent.

The immigration officer did not do what regulations 4(5) and 4(6) requires of him.

Right of entry into the state is not derived from the Residence card but community law, which the regulations seeks to transpose.

The steps your lawyer should be taking, is threatening the department they will seek a madamus writ or mandatory order to bring you back to the state.

[cyberhawk]

I have written an email in my personal capacity to the minister for equality and justice but haven’t heard back.

Can my lawyer write to him through an official channel and get an immediate response?

Lastly, I didn’t mention that the immigration officer took my Garda card which is a must to fly from Pakistan.

[cyberhawk]

My lawyer asked for some senior’s assistance regarding mandamus and this is what he was told.

Please see below an expert opinion from the Barrister. We cannot invoke JR in this situation as INIS revoked your stamp in accordance with the free movement regulations and failure to inform them of your new address was breach of Regulation 8 of the Free Movement Regulations 2015.

As you are aware he was obliged to notify of his changed address once he returned to the State and failed to do so. Therefore, it seems to me that the revocation was only without his knowledge due to his own failure.

Additionally, it seems strange that the authorities became aware of the family's departure-clearly they were under investigation for this to happen. As they were absent form the State for almost 2 years then the revocation would seem to be in compliance with the Regs-EU citizen was not here, not exercising Treaty Rights etc.

If the EU citizen is now working here it might be quicker to withdraw the appeal and make a fresh application for a visa under the Directive. The earlier status looks problematic to me from what I can see of it.

[Obie]

The advise proceed on the premise that your right to enter the state depends on the Residence card, and that is clearly wrong.

At any point you enter the state, Regulation 4 is engaged and the Immigration officer is required to examine if your wife is in the state and whether you are joining or accompanying her.

In this case it seems you were joining your wife who was in the state upon arrival.

One is not questioning the right of the minister to revoke your residence card at the time he did.
The question for me, is whether the minister was entitled to refuse entry to you upon arrival, without any due regards to Regulation 4(5) or 4(6), and I believe he was not.

[cyberhawk]

Thanks for your suggestions and time. I really appreciate that!

[Granista]

Some really terrible advice on this thread.

You didn't tell INIS of your address change, which you were legally required to do. You left the state and returned to Pakistan so were no longer resident.Your residence permission was revoked as per the rules. You then had no status in the State. The ICO at the airport could not grant you leave to land with no legal status, and you had no EUTR visa to gain entry to join your spouse, and you were not travelling with your spouse. You had no basis to claim right of entry.

All done correctly, no legal issue there at all, the mistake was yours not anyone elses. When did you leave the state and move back to Pakistan?

[Obie]

What is bad about the advise on this thread?

The Irish 2015 regulations is designed to implement directive 2004/38EC.

That directive provides for a right of entry and a period of residence, any time an EU national enters the state, and anytime a family member is joining or accompanying an EU citizen..

There is a difference between right of Entry and residence for a period of 3 months, which every EU citizen and their family member has upon entry at Irish port, and whether this persons residence card is valid.

When you differentiate the question of whether the Irish Government was entitled to revoke the Residence card, from the question of whether this person, as a family member of a Polish National resident and exercising treaty rights at the time he sought entry at Irish port, then you will understand and appreciate that the advise given is very sound.

My advise is based on the law and legal position, not secret or undisclosed policies.

[Granista]

You are confused. If residency permission under EUTR has been revoked, a decision has been made that at that point the individual is not a beneficairy of the Directive. So when he turns up at the border with no visa, and a revoked stamp 4, the ICO knows that the DoJ has already deemed he is not able to avail of EUFAM rights.He was not accompanying his EU spouse anyway, and spouse had been here for more three months so engaged further requirements, which he did not meet.
The directive provides for the right of entry for someone who qualifies as a beneficiary. OP here does not qualify. He needs to reapply for the entry visa and convince them that he is again a beneficiary. Which will be very difficult with his history

[cyberhawk]

What’s wrong with the history? I have been granted a number of visas to US, UK and other countries. I have been granted 3-4 visit visas to Ireland without stamp 4 from 2014 to 2016.

[Obie]

I think the confusion originate from your lack of understanding of EU law.

The Court of Justice has ruled as way back from Royers and much recently in MRAX, that an EU citizen and their family member derive rights directly from EU law and not a document issued to them.

The documents does not confer rights it only serves as proof of an existing right at the time it was issued.

Therefore the Residence card issued, only confirmed the OP's right, it does not grant him any rights. His rights originate directly from EU law and not a residence permission.

Once you understand the above principles and context of EU law. My advise will make more sense to you.

Furthermore you are wrong. He can accompany or Join the EU citizen. As the wife was in Ireland, he was clearly joining her.

The minister did not say he refused because the relationship was one of convenience. If that was the case, I will have difficulties giving the advise I gave.

The minister simply refused on the basis he is no longer residing in Ireland. That was why the Residence card was revoked, in accordance with EU law, which provides a card becomes invalid after 6 months absence.

However that did not preclude subsequent entry or residence rights, if a person is accompanying or joining an EU citizen, which this man was trying to do.

[littlerr]

I know Obie you were trying to explain this from the EU directive’s perspective, but I just don’t understand how one person can be simply permitted entry even if his EU Residence permit is (rightfully) revoked.

Say if I am a non-EU National. I joined my EU spouse here and obtained a Stamp 4EUFAM. If I then became a residence elsewhere for a couple of years, it is correct for INIS to revoke my permit.

You are basically saying that when this happens, as long as my spouse is still living in Ireland, I can still enter Ireland at any time I like simply because my spouse supposedly still lives in Ireland. This certainly doesn’t sound right to me? Even if this is the case, I doubt if the OP would have the original marriage certificate and a join-spouse visa with him?

[Granista]

I think the confusion originate from your lack of understanding of EU law.

The Court of Justice has ruled as way back from Royers and much recently in MRAX, that an EU citizen and their family member derive rights directly from EU law and not a document issued to them.

The documents does not confer rights it only serves as proof of an existing right at the time it was issued.

Therefore the Residence card issued, only confirmed the OP's right, it does not grant him any rights. His rights originate directly from EU law and not a residence permission.

Once you understand the above principles and context of EU law. My advise will make more sense to you.

So funny. The documents do serve as proof of an existing right, you are correct. You fail to understand that the revocation of that document serves of proof of that right not being in existence. Hence why OP is not in the State. The Minister quite correctly deemed the OP to not have any rights under Directive 2004/38/EC
I'm a qualified immigration professional btw, but appreciate the mansplain, always amusing.

[Obie]

Unfortunately that may not sound right to you, but it is the law. The court in Metock and all EU law that I could remember, makes it very clear.

For example in the case of Diatta, the court ruled that an non EU citizen spouse has rights, even when their relationship have broken, provided a divorce has not been pronounced by the competent authority.

The court followed the same line in a recent Irish case, relating to a man who was sacked from his post office Job. The court found he had rights even if the separated and got into new relationship, provided they are not divorced.

EU freemovement laws are very different in scope to domestic provisions.

[Granista]

Neither Metock nor Diatta are relevant to the OP's case, and the pp was quite right.

OP had no status to enter the State. He had no EUTR entry visa. He was not accompanying his EUFam member. His residence permission had already been revoked, he had no status to live in the State.
It was not in any way possible for him to be granted entry.

You seem to be confusing right of residence and right of entry, and you don't understand the dif between join and accompany, or the impact of a negative residency status.

[Obie]

I think the confusion originate from your lack of understanding of EU law.

The Court of Justice has ruled as way back from Royers and much recently in MRAX, that an EU citizen and their family member derive rights directly from EU law and not a document issued to them.

The documents does not confer rights it only serves as proof of an existing right at the time it was issued.

Therefore the Residence card issued, only confirmed the OP's right, it does not grant him any rights. His rights originate directly from EU law and not a residence permission.

Once you understand the above principles and context of EU law. My advise will make more sense to you.

So funny. The documents do serve as proof of an existing right, you are correct. You fail to understand that the revocation of that document serves of proof of that right not being in existence. Hence why OP is not in the State. The Minister quite correctly deemed the OP to not have any rights under Directive 2004/38/EC
I'm a qualified immigration professional btw, but appreciate the mansplain, always amusing.

I am a qualified immigration professional who has worked in UK and Ireland, so I know what I am talking.

I do not need to go very far into EU law jurisprudence. The 2015 regulations mandate an immigration officer not to deport a family member of an EU citizen who are not in possession of a visa.

In accordance with MRAX and Article 5 of the directive 2004/38EC, the regulations demands the IO allow the person every opportunity to proof by other means that that have a right to enter into the state.

Therefore in accordance with the regulations, the officer should first have tried to establish if the OP's wife was in the state, if she was, the officer must then establish if she has been residing for more than 3 months, if she has, the officer must then determine if she is exercising treaty rights. If she is, then this person has a right of Entry into the state for a period of 3 months, upon providing proof of his relationship to his wife.

The officer should have then advised him to apply for a Residence card if he proposes to reside in the state for 3 months or more.