Obie wrote:[b] Regulation 2006 [/b] wrote:
12. (1) Subject to paragraph (3) and Regulation 13, a person to whom these Regulations apply who
has resided in the State in conformity with these Regulations for a continuous period of 5 years may
remain permanently in the State.
[b] Directive 2004/38EC[/b] wrote:
Article 16
General rule for Union citizens and their family members
1.
Union citizens who have resided legally for a continuous
period of five years in the host Member State shall have the
right of permanent residence there. This right shall not be
subject to the conditions provided for in Chapter III.
Please note that the directive does not state that these people should have been residing in conformity with the directive in question.
Therefore i think the Irish regulation seem to have added that conformity bit, it is illegal. You should write to them saying you will seek judicial redress if the Permanent Resident Card is not issued, as the directive states that , you qualify once your have resided in a member state for 5 years, and not once you have lived in a member state for 5 years in conformity with Regulation 2006.
Most memberstate including the UK have made transitional arrangement for people who acquired residency prior to 2006, for their residency to be counted toward their residency requirement for PRC.
I wish you the best.
with regard to discreoancies in relation to the directive and regulation, that is not correct. all texts should be read in full.
this is what recital 17 of the preamble of directive 2004/38 ec says
Enjoyment of permanent residence by Union citizens
who have chosen to settle long term in the host Member
State would strengthen the feeling of Union citizenship
and is a key element in promoting social cohesion,
which is one of the fundamental objectives of the Union.
A right of permanent residence should therefore be laid
down for all Union citizens and their family members
who have resided in the host Member State
in compliance
with the conditions laid down in this Directive
during a continuous period of five years without
becoming subject to an expulsion measure.
conditions are laid out in articles 2,3, 7,12,13 and
14 of the directive. considering the preamble was considered extensively in cases like metock, it appears the preamble is part of the directive as much as the articles
note the first line of article 16
Union citizens who have
resided legally for a continuous
period of five years in the host Member State
in order to be legally resident, the eu citizen sould be complying with articles 7. once they do that for 5 years, then they have automatic rights to pr. see the derrogations of article 16 in article 17.artilce 17, should be read in light of article 16. article 17 is there for those who do not meant the 5 years rule but should for reasons out of their control did not meet the 5 year rule but still should be granted pr.
it is my opinion, when both texts are read as whole, there is little difference. it is therefore as you will see in article 17, that you first must clock up the 5 years (in conformity with conditions laid down elsewhere in the directive)
once the right is achieved,
then you are eligible and
then you and family member are no longer required to comply conditions such asseen with article 7 in the future
a bad soure to turn to but see
http://en.wikipedia.org/wiki/Directive_ ... ide_freely
"Permanent residence is acquired automatically
after exercising treaty rights for 5 years, with absences of normally less than 6 months a year, a single absences less than 12 months in certain circumstances (birth, severe sickness, etc.), or longer for military services. Permanent residence removes any restrictions that are in place concerning access to public funds (such as unemployment benefits, a state pension etc), although some of these restrictions are already lifted after a period of 3 months. Permanent residence is only lost after an absence of 2 years"
Euopa website repeats the above quote
http://europa.eu/legislation_summaries/ ... 152_en.htm
"Union citizens
acquire the right of permanent residence in the host Member State
after a five-year period of uninterrupted legal residence, provided that an expulsion decision has not been enforced against them"
this of course does not concern op.
the directive came into law in 2004! it should not be the op'd fault that each member state mucked up in implementing the legislation into domestic law. it is not like this directive gives ANYTHING NEW to non eu spouses in regard to permission to be with eu spouse - older directives gave this right long before 2004 directive (not to mention that the eu spouse's right to reside also and more importantly derives from the treaty itself!)!. what other means could the non eu person have to reside here? the op was given permission to reside soley on basis of marriage to eu citizen and soley on the basis that the eu spouse exercised their eu rights. which in this case has occurred.
yes insist on your rights under article 16
