Zambrano cases - €150 for GNIB card?

[Ben]

I was in the Waterford GNIB office yesterday evening. Most other people in there appeared to be Zambrano cases. We bumped in to a couple of families that we know. Processing seems to be fairly painless with minimum fuss, but then Pat Duggan is a gentleman who shows respect for everyone and contempt for none.

Just one thing, I thought issuance of the Certificate of Registration (GNIB card) would be free of charge since this is residence under EC law? Families had to pay €150 per person in Waterford last night.

[walrusgumble]

I was in the Waterford GNIB office yesterday evening. Most other people in there appeared to be Zambrano cases. We bumped in to a couple of families that we know. Processing seems to be fairly painless with minimum fuss, but then Pat Duggan is a gentleman who shows respect for everyone and contempt for none.

Just one thing, I thought issuance of the Certificate of Registration (GNIB card) would be free of charge since this is residence under EC law? Families had to pay €150 per person in Waterford last night.

I would agree that its rather odd that there is a charge. But,

The problem is, what other legislation bar Directive 2004 /38 EC actually provides that no charges are permitted?. People getting residence on Zambrano, Most people clearly do not fall under the Directive. I do not think there is anything in the recital or Treaty itself that mentions it.

Did Zambrano actually say that the child will now be allowed to enjoy EU Treaty rights like an EU citizens in a country other than their own or did it imply, domestic law now applies. Article 20TFEU was invoked simply to stop removal and family reunification, but no more.

[Ben]

The problem is, what other legislation bar Directive 2004 /38 EC actually provides that no charges are permitted?. People getting residence on Zambrano, Most people clearly do not fall under the Directive. I do not think there is anything in the recital or Treaty itself that mentions it.

Did Zambrano actually say that the child will now be allowed to enjoy EU Treaty rights like an EU citizens in a country other than their own or did it imply, domestic law now applies. Article 20TFEU was invoked simply to stop removal and family reunification, but no more.

Ah, that'll be it then.

[walrusgumble]

The problem is, what other legislation bar Directive 2004 /38 EC actually provides that no charges are permitted?. People getting residence on Zambrano, Most people clearly do not fall under the Directive. I do not think there is anything in the recital or Treaty itself that mentions it.

Did Zambrano actually say that the child will now be allowed to enjoy EU Treaty rights like an EU citizens in a country other than their own or did it imply, domestic law now applies. Article 20TFEU was invoked simply to stop removal and family reunification, but no more.

Ah, that'll be it then.

I think I detect sarcasim, but really, though, what is the legal basis that says it is wrong of the Irish authority to charge. I am with you on this one, but are we correct to point out that EU law is applicable?

[Ben]

I think I detect sarcasim, but really, though, what is the legal basis that says it is wrong of the Irish authority to charge. I am with you on this one, but are we correct to point out that EU law is applicable?

No, no sarcasm. I think you're right. The Directive lays out the right of residence under certain conditions and those who meet the conditions are issued a residence card under the provisions of Article 10 of said Directive. As you say, Zambrano cases do not qualify under the Directive but following an ECJ ruling provision is made for them to reside *outside* of the provisions of the Directive, hence Article 10 (or any article of this Directive) does not apply.

I think that's the interpretation you're suggesting and, if it is, it sounds logical to me. I'm not being sarcastic.

But then saying that, other ECJ rulings, for example that of Surinder Singh, also make provision for those who do not do not qualify under the Directive but following the ECJ ruling provision is made for them to reside outside of the provisions of the Directive - and for these people the provisions of the Directive apply, such as Article 10, the right to permanent residence, the right to receive equal treatment etc etc.

So while I agree with your line of thinking initially and that it's probably the rationale Ireland (and possibly other Member States) has for charging for the issuance of residence documentation*, I'm not 100% certain that it's correct.

*I say "residence documentation" and not "residence card" because Stamp 4 is being issued for Zambrano cases, not Stamp 4 EUFam. Perhaps to further cement that this provision for residence is made outside of the scope of the Directive. It will be interesting to see if permanent residence can be acquired / confirmed after five years.

[ImmigrationLawyer]

I don't think spouses of Irish citizens are charged usually...

[Ben]

I don't think spouses of Irish citizens are charged usually...

Thanks, but that's not relevant.

[ImmigrationLawyer]

Well it could be argued that an Irish person has a right to reside in their EU state with their non EU spouse under TFEU and the Charter, as in Zambrano.
The difference between Zambrano and all the other cases you mention is that in Zambrano there was no movement - hence the 2004 Directive doesn't apply.

[walrusgumble]

Well it could be argued that an Irish person has a right to reside in their EU state with their non EU spouse under TFEU and the Charter, as in Zambrano.
The difference between Zambrano and all the other cases you mention is that in Zambrano there was no movement - hence the 2004 Directive doesn't apply.

That right (ie TFEU) is limited since McCarthy. It seems that the Article can only be invoked in extreme cases, like that in Zambrano. Zambrano expressly refers to child and the exceptional basis. You never hear many people invoking another child centred case, Chen?

People ranting about the ECHR and Fundamental Charter seem, conveniently to ignore the wide margin of appreciation that the ECtHR give to states under Article 8.2 of ECHR when considering Article 8.1 ECHR

Anything more and the ECJ unjustifiably is interfering into areas expressly outside their competence. The Citizens Article itself does not provide what you suggest. Any aspirations made about citizenship being fundamental etc were made by Advocate Gernals and not ECJ. ECJ have acknowledge such sentiments but have never dared to confirm their agreement with such sentiment.

[Obie]

In Carpenter, the court sort of made the point, that to some extent the ECHR BINDS the organs of the community. Even though advocate general Geoldhoff sought to get the court to revert from this notion in Jia, the court was completely silent on it.

The notion that secondary law (directive) rein supreme over primary law (EC treaty) is complete rubbish. I have read some peoples(advocates for INIS bad practice) opinion, that because the right given to other EU CITIZENS derives from the directive and the one in Zambrano is treaty, so the irish are right to charge this fee.

I have to say, i find this argument strikingly odd, and in the absence of any ECJ JURISPRUDENCE to back it, strongly believe it would not hold up to judicial scrutiny.
The Directive was introduced to give effect to rights under the treaty. It cannot have greater force than treaty rights, surely.

An EU nation derives rights directly from the treaty and not secondary law, which is aimed at giving effects to rights under the treaty.

Yes i agree, that zambrano beneficiaries cannot claim rights under the directive, as there was no prior movement, but to suggest they have lesser rights than people who claim rights from the directive has no legal basis.

To prevent discrimination on grounds of nationality, fees should not be charged for document issued to EU citizens or other Irish national for free.

In the case at issue, there is discrimination on grounds of age and nationality. Spouses or children of Irish nation pays no fee for GNIB, but the parent of minor Irish children has to.

Chen parents pay no fee, but Irish citizens parent has to. This is wrong, and should be scrapped.

[walrusgumble]

In Carpenter, the court sort of made the point, that to some extent the ECHR BINDS the organs of the community. Even though advocate general Geoldhoff sought to get the court to revert from this notion in Jia, the court was completely silent on it.

The notion that secondary law (directive) rein supreme over primary law (EC treaty) is complete rubbish. I have read some peoples(advocates for INIS bad practice) opinion, that because the right given to other EU CITIZENS derives from the directive and the one in Zambrano is treaty, so the irish are right to charge this fee.

I have to say, i find this argument strikingly odd, and in the absence of any ECJ JURISPRUDENCE to back it, strongly believe it would not hold up to judicial scrutiny.
The Directive was introduced to give effect to rights under the treaty. It cannot have greater force than treaty rights, surely.

An EU nation derives rights directly from the treaty and not secondary law, which is aimed at giving effects to rights under the treaty.

Yes i agree, that zambrano beneficiaries cannot claim rights under the directive, as there was no prior movement, but to suggest they have lesser rights than people who claim rights from the directive has no legal basis.

To prevent discrimination on grounds of nationality, fees should not be charged for document issued to EU citizens or other Irish national for free.

In the case at issue, there is discrimination on grounds of age and nationality. Spouses or children of Irish nation pays no fee for GNIB, but the parent of minor Irish children has to.

Chen parents pay no fee, but Irish citizens parent has to. This is wrong, and should be scrapped.

Yes, ECJ has started, and are beginning to really look to instruments like the ECHR. No one is denying that. With the ECHR/fundamental Charter having a more strong EU law status since Lisbon, who knows what happens next.


What I was saying is that the ECJ in Carpenter did not, express in their judgment, any indication that a real and genuine analysis was made of Article 8 as a whole. It is possible, that had Carpenter being heard in ECtHR, it might have failed, Article 8.2 might have assisted the Member State. Might.

Carpenter, by the way, actually was exercsing his EU rights , provision of service and self employed activity in other EU states, which he could arguably invoke something similar to Surindeer Singh.

You said
"The notion that secondary law (directive) rein supreme over primary law (EC treaty) is complete rubbish. I have read some peoples(advocates for INIS bad practice) opinion, that because the right given to other EU CITIZENS derives from the directive and the one in Zambrano is treaty, so the irish are right to charge this fee.

I have to say, i find this argument strikingly odd, and in the absence of any ECJ JURISPRUDENCE to back it, strongly believe it would not hold up to judicial scrutiny. "

The fact that you suggested the possibility that someone suggested what you have said clearly highlights your low level of intelligence, sheer stupidity, complete lack of knowledge of EU law and or your inability to read. That statement makes no contribution to the discussion because you are trying to pick a line of argument that no one is raising. No one suggests what you have said. Your interpretation is dishonest and self serving to meet your own ends, or just shows ignorance of EU law.

The secondary legislation only puts meat to treaty provisions and gives the meaning of what the short, general and sometimes generally vague provisions of the Treaty mean. With regard to Freemovement, the provisions of the Treaty such as the Recitials and Artilce 45 TFEU (workers) clearly call for the requirement of freemovement from one state to another. The Treaty has no power, strictly in the area of free movement,to dictate to member states how it deals with non eu nationals and nationals (static) who reside in their country of origin at all times.


The Secondary legislation must comply with EU Treaty. How many are arguing that eg Directive 2004/38 EC is against EU Law despite providing clear limitations on Article 20 and 21 (general law on citizenship)?
ie only really applies if you actually move, and in limited/extreme cases (like Zambrano) it can help static people.

Court will only invoke the Citizenship Treaty provision in exceptional cases and only after a consideration of whether the person complies with other Treaty provisions like Article 45 TFEU and the Secondary legislation.

Something that the self serving mind of yours needs to understand, no body in the European Union, well at least the political front, accept or provide law for the provision of a free world boarders. If you want to invoke EU law, the EU citizen must actually get off their asses and move. This is not the United States of Europe. Countries, most of them (well ones that have some self respect) do not want a complete Supranational or Federal European Union. The mere hint of it, contained in the Constitution (nothing major really as its mostly adopted in Lisbon) sent the French and Dutch mental. The EU POlitical Institutions are increasingly trying to return to Intergovernmental characteristic of the Union.


Neither the Advocate General and ECJ(especially ECJ) could not set
down any legitimate and convincing LEGAL argument in Zambrano, to justify its departure for other cases or even expand on Chen (ie no requirement of self sufficiency etc) All it did was act like a whinny bleeding heart liberal (an democratic unaccountable at that) who simply says, its fair (not how law roles, baby) yet, does not even bother to look at the contradictions is now causes compared to other cases. Again, its going, like Chen, to be a rather limited and probably forgotten about case.

Al Zambrano said was, the person should not be removed from the country of birth. And as carers the parents should be treated like Irish people. That is is. The treaty does not deal with how a state deals with its own people.

[Obie]

I don't think we should get into insults or personal attack here. In you first and second post, to the best of my understanding, you seem to be questioning whether EU law is applicable in Zambrano case, to back up your argument that fees should be charged.

According to you, it seems there is nothing that fetters the Irish authorities from charging fees, as the directive is not applicable.

I was merely stating that those views have no legal basis and they seem on the face of them, fundamentally flawed.

I credit you with the fact that, you expressed some doubt or uncertainty about it, but i was uncomfortable with the further argument you suggest could be used to justify them.

There is no point in us arguing about Zambrano case law. It is a settled matter, that is here to stay, which was settled by the Highest court in the European community. Unlike the ECHR, it is made up of judges selected from all the memberstates, so no one could question its legitimacy.

It is settled law (D'hoop and other) that Citizens of the Union is conferred on any national holding the nationality of a member state. It complements and not replace national citizenship.

The courts have also gone on to state that Citizen of the Union is intended to be the fundamental status of national of the memberstates, allowing those who find themselves in the same positions in law, to be treated equally, without any discrimination, subjected to those provision that are expressly provided for.

A Union Citizens in Chen cannot be treated differently from a Union Citizens in Zambrano. They hold rights under Article 20 and 21 under Treaty on the functioning of the EU.

Those rights according to settled case law, should be exercised without any measure that could make them illusory, and cause obstacle to it.

People in Zambrano case, will mostly be individuals without work permits, no right to work, and facing the prospect of deportation. They might find it difficult to make ends meet, demanding fee that they cannot, in most case afford, is a form of detterance. It will be assumed that if those family cannot afford those fee, they will not be issued with GNIB, they will then have no rights to live or work in Ireland, and inevitable will have to be removed.

This does not fulfill the objectives of zambrano.

I will not engage in you argument about fundamental rights or Human rights, more than i have already done in my previous post. I don't want to extend the scope of Ben's post or go out of topic, as this will be rude.

On another thread open specifically, i will be prepared to address those argument and beef (fight) you seem to have with the CJEU.

[walrusgumble]

I don't think spouses of Irish citizens are charged usually...

Thanks, but that's not relevant.

I think it would. I believe the attitude of the Department is that while Zambrano invoked EU law, it leave it to domestic law to deal with them in the future.

If they treat the parents of the Irish citizen child differently to a spouse of a citizen adult, that sounds rather odd and a bit discriminatory. There could not be any valid reason for the difference in treatment. Both got status on basis of relationship with Irish Citizen

[ImmigrationLawyer]

I agree, but who is going to apply to the High Court for the sake of €150.!? The stamp duty on the court docs is more than that. And the Dept won't change anything, it seems, unless the High Court tells them to.

[walrusgumble]

I don't think we should get into insults or personal attack here. In you first and second post, to the best of my understanding, you seem to be questioning whether EU law is applicable in Zambrano case, to back up your argument that fees should be charged.

According to you, it seems there is nothing that fetters the Irish authorities from charging fees, as the directive is not applicable.

I was merely stating that those views have no legal basis and they seem on the face of them, fundamentally flawed.

I credit you with the fact that, you expressed some doubt or uncertainty about it, but i was uncomfortable with the further argument you suggest could be used to justify them.

There is no point in us arguing about Zambrano case law. It is a settled matter, that is here to stay, which was settled by the Highest court in the European community. Unlike the ECHR, it is made up of judges selected from all the memberstates, so no one could question its legitimacy.

It is settled law (D'hoop and other) that Citizens of the Union is conferred on any national holding the nationality of a member state. It complements and not replace national citizenship.

The courts have also gone on to state that Citizen of the Union is intended to be the fundamental status of national of the memberstates, allowing those who find themselves in the same positions in law, to be treated equally, without any discrimination, subjected to those provision that are expressly provided for.

A Union Citizens in Chen cannot be treated differently from a Union Citizens in Zambrano. They hold rights under Article 20 and 21 under Treaty on the functioning of the EU.

Those rights according to settled case law, should be exercised without any measure that could make them illusory, and cause obstacle to it.

People in Zambrano case, will mostly be individuals without work permits, no right to work, and facing the prospect of deportation. They might find it difficult to make ends meet, demanding fee that they cannot, in most case afford, is a form of detterance. It will be assumed that if those family cannot afford those fee, they will not be issued with GNIB, they will then have no rights to live or work in Ireland, and inevitable will have to be removed.

This does not fulfill the objectives of zambrano.

I will not engage in you argument about fundamental rights or Human rights, more than i have already done in my previous post. I don't want to extend the scope of Ben's post or go out of topic, as this will be rude.

On another thread open specifically, i will be prepared to address those argument and beef (fight) you seem to have with the CJEU.

Zambrano says nothing about fees, just a right to protect vulnerable minor citizens from being indirectly deported. There is no requirement of parents to be self sufficient. That is the limit of what EU law provides.

As for the really retarded comment, I have no legal basis for my argument. You really are not the brightest. How about Article 5 TEU _ I better spell it out for you; THe Union's comptence is limited to that conferred by the Member States to the Union. Please show me where the competence to dictate to Member States as to how it deals with its own citizens, when cases like Singh Do NOT apply.

or what about any other provision dealing with the Freemovement of People (eg Article 45 tfeu and 49tfeu. - which all require actual movement from the state or origin) Or how about Article 21 TFEU.


According to you, it seems there is nothing that fetters the Irish authorities from charging fees, as the directive is not applicable.

I was merely stating that those views have no legal basis and they seem on the face of them, fundamentally flawed. "

Really Sherlock, Fundamentally flawed? have a read of the Directive and then show me where have I errored in my ways. Read it in light of other legislation on Freemovement like Regulation 1612/68. I suggest refraining from words and phrases that you do not understand
"
There is no legal basis for the Union to intervene. You seem, for now to be the only person who has such an opinion to the contrary. I would argue that there is a better chance on domestic point.

Since you believe the contrary, you should state the legal basis of your belief. You have cited nothing

You need to learn to interpret eu law objectively and fast. Or at least specifically ground your basis for it as oppose to vague wishy washy arguments.

Zambrano settled, maybe, but its very limited. The impact, practically, is gone in the sense of what countries had aimed to prevent as citizenship laws are completely changed. Anyone seeking assistance to Zambrano will now at least have a decent connection to the state all ready or at least the child would have.

You should read up on the ECtHR, you are talking through your backside. And your childish argument has nothing to do with that court's analysis of Article 8. AS for Judges of ECJ, they are appointed simply by common accord, very few member states will validly object to another state's choice of judge. Both ECJ and ECtHR judges are of the highest standard and competence and independence. If the ECtHR lack creditibilty, why then so many resort to it, why then is ECJ so careful not to tred of the jurisidiction of the ECHR ?(as there's nothing on fundamental rights in the treaty)

"It is settled law (D'hoop and other) that Citizens of the Union is conferred on any national holding the nationality of a member state. It complements and not replace national citizenship. "

Zambrano does more than Complement!!!! DHoop actually involved movement to another country. It also did not involve family reunification but EU citizen's rights as a student. THe phrase that citizenship aims to be the fundamental status strongly suggests more than complementing citizens. Also the factual results (not the principle on citizenship) is now reversed via Article 24 Directive 2004/38 EC and the case fo Forster 2008. The Citizenship Directive will be used at last resort if one fails in Articles 45 etc and Directive 2004/38 EC It is one example (though nothing to do with family reunification) that shows that members state can, sometimes, treat other EU citizens differently

"courts have also gone on to state that Citizen of the Union is intended to be the fundamental status of national of the memberstates, allowing those who find themselves in the same positions in law, to be treated equally, without any discrimination, subjected to those provision that are expressly provided for. "

As oppose to the Advocate Gernal, which Courts actually agreed? Pick out the cases involving STATIC citizens. There is no dispute about a eg German being entitlted to the same conditions as a native in the host country. But again, sorry to burst your bubble but read Article 24 Directive 2004 / 38 EC and Forster. Limits are permitted is proportionate. Citizens CAN be treated differently in some cases. (D'Hoop involves students)


"A Union Citizens in Chen cannot be treated differently from a Union Citizens in Zambrano. They hold rights under Article 20 and 21 under Treaty on the functioning of the EU."

Settled law? Yes there is case law, but where is the case law to back you this situation.

As for case law in gernal, McCarthy '!!!! As for the Treaty when read in full, Article 5 TEU.

There are a few more cases involving internal matters let some one else get them. (McCarthy is not the first case to say EU law is not applicable where no exercise of rights occur) Zambrano even in the facts are limited to certain types of citizens. And Zambrano is not settled law to an extent that it will say. No case in the last few years can say that. Akrich was gone in less than 2 years. Cases like Zambrano and even Metock (to an extent), the decisions of which is not the problem, it is how it made the decision, without any proper analysis or relevant explanation to the Treaty or case law. To be fair the Advocate General in both cases did give their view, by ECJ stayed well clear of it, which suggest not all were in acceptance.


"People in Zambrano case, will mostly be individuals without work permits, no right to work, and facing the prospect of deportation. They might find it difficult to make ends meet, demanding fee that they cannot, in most case afford, is a form of detterance. It will be assumed that if those family cannot afford those fee, they will not be issued with GNIB, they will then have no rights to live or work in Ireland, and inevitable will have to be removed. "

This your basis for legal argument? Where's the objectivity. The political circles will argue that it won't be able to afford to provide for the parents. EU law was suppose to only apply to those who could afford to move. Not any more of course.

That is not the Unions problem not any countries problem. These people will be entitled to social welfare and other rights and €150 (or €300 for couples) is a small price to pay for. They had no problem paying to get into the country. By the way, lets call a spade a spade (to do otherwise your are a liar) most of those relying on Zambrano in ireland are failed asylum seekers and undocumented immigrants who should have left when their permission to stay had expired.



As for refusal to discuss human rights, until you actually get the law correct, your right, don't engage, you can't even correctly discuss what you are talking about.

Any concerns that I have regarding discrimination is on the basis of IRISH LAW. Jesus you don't even know what legal discrimination means as you compare different cases to the Irish situation (IE cases whrere EU law does apply and where movement occurred) Compare like facts to similar situations.