Court case - Directive/2004/38/EC

[Babsie]

Hi
can I ask, is there evidence anywhere of this alleged court case against the department of justice?
I've searched all relevant websites and I can't find anything about it at all

http://www.juradmin.eu/en/jurisprudence ... ce_en.html
http://www.curia.europa.eu/en/coopju/ap ... /index.htm

[Platinum]

dsab85's news is bad news for us, but, of course, crushing news for him and his wife.

After reading about his wife's EU1 rejection, I read through what I could find of Directive/2004/38/EC, and nowhere in there does it suggest that family members of EU citizens have to have resided in another EU country. Where is Ireland getting this requirement from?

[dsab85]

I am at work atm, but as far as I can see they refer in their letter to a Paragraph that is not in the official "European Communities (Feee Movement of Persons) (No.2) Regulations 2006" Documentation that they publish on their own website. So they must have added it at a later stage. And this added paragraph seems to be the problem, and also be the reason for the pending court case.

I called the person who sent the rejection for some further questions. Very nice guy, and he explained that the case is at the High court, and that judgement is scheduled for the 27th of April. Until then I will have to wait. If the judge agrees with the justice Departments stance, then the refusal will be final. If the judge agrees with "our" interpretation, then they will review all current applications abnd all previous rejections.

I will research and publish here at a later stage tonight, wghen I have the letter in my hands.

[zen63]

dsab85 - its almost certainly just a one year letter instead of the 5 year one that you were expecting. It means your wife can stay, can work, can leave the country.

It just means that after one year she has to go directly to the GNIB for a renewal 4 year card.

[dsab85]

No, doesn't look like it to me. Please see below the letter I received:

Dear Ms....,

I am directed by the Minister of Justice, Equality and Law Reform to refer to your application for residence under the provisions of the European Communities (Free Movement of persons)(No.2) Regulations, 2006, which was submitted on Form EU1 and which was received in the Irish Naturalisation and Immigration Service on XXX.

The provisions of Regulation 3(2) require in order to avail of residency rights under the regulations, applicants must submit evidence showing lawful residence in another EU Member State prior to arrival in Ireland. Following a thorough examination of your file, it was decided that no evidence was submitted to satisfy the requirement and that therefore, residence can not be granted. In addition Article 8 of the European Convention on Human Rights has been considered in this context.

Judicial Review proceedings relating to a similar decision are currently ongoing in the High Court. Until these proceedings have been decided however, the provisions of Regulation 3(2) continue to have effect and must therefore be complied with in order for residencey to be granted.

In accordance with the provisions of Regulation 8(1), it is not possible to granht residency on a temporary basis.

Regulation 8(1) provides:

Subject to Regulation 20, the period of validity of a residence card shall be equivalent to the envisaged period of residence in the State of the Union citizen of whom the recipient of the card is a family member, or not less then 5 years from from the date of issue of the card, whichever is lesser period.

You application might be elibable for reconsideration pending the outcome of the above mentioned High Court proceedings.

[Platinum]

Ugh, how completely useless and opaque.

What do other EU countries do about spouses of EU citizens? Are the Irish the only ones who've interpreted the Directive in this way? How does a German in the UK, for instance, do this?

This *must* contravene freedom of movement laws. It means an EU citizen who has moved to another EU country to exercise his treaty rights isn't allowed to marry an non-EU citizen and have his family live with him. He'd have to move back to his country of citizenship to do so. How is that at all fair?

[Directive/2004/38/EC]

The provision requiring prior residency in an EU country is not from Directive 2004/38/EC. The Irish have added the requirement to S.I. No. 656 of 2006 and the original S.I. No. 226 of 2006.

I suspect, but do not know, that the Irish added the clause based on the ECJ case C-109/01 Akrich, which decided in part that
[quote]“In order to benefit...from the rights provided for in Article 10 of Regulation 1612/68, the national of a non-Member State, who is the spouse of a citizen of the Union, must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migratedâ€

[scrudu]

I suspect they may have included this requirement in response to the following from Directive/2004/38/EC http://eur-lex.europa.eu/LexUriServ/sit ... 770123.pdf

(28 ) To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures.

"Preventing abuse of the system (Marriages of Convenience)" has been stated as the reason in many DOJ documents for the strictness of controls, and has been quoted to me so many times by DOJ Telephone operators, that I suspect requiring proving legal Residence in another EU country, proves that the marriage is not existing merely to get the non-EU spouse entry into Ireland (or the EU).

[Babsie]

"Preventing abuse of the system (Marriages of Convenience)" has been stated as the reason in many DOJ documents for the strictness of controls, and has been quoted to me so many times by DOJ Telephone operators, that I suspect requiring proving legal Residence in another EU country, proves that the marriage is not existing merely to get the non-EU spouse entry into Ireland (or the EU).

Ok...why are they excluding Irish people from this though? Are Irish people less subject to marriages of convenience? This is 100% discrimination. I'm sorry, no one cares cause us EU-non Irish, do not vote here, hence why should a politician give a rats backside?

[scrudu]

If you check out any of the posts from Irish citizens or spouses of Irish citizens you'll see that the same checks/restrictors based on "marriages of convenience" also apply! The only difference is there is no Law or Directive which governs how non-EU spouses of Irish citizens should be handled, hence every application made is a bit of a "hit n miss" procedure!

Check out shellylooney's case for an example of a non-EU (phillipines) spouse of an Irish citizen whose application was refused on the basis of "lack of proof of relationship".

I agree the rights of non-Irish and their families seem to be down the list of priorities for many politicans (as do non-Irish spouses of Irish citizens). It's worth bringing it up as a topic with politians when they canvas at your door over the coming months!

[Babsie]

Sorry but I just can't get over this.
So according to the DOJ, my husband and I now, are supposed to pack up and go live abroad? Sorry but why does living elsewhere prove a relationship? And if they need proof of relationship, why don't they specifically ask for this? I'm more than glad to pop down to the DOJ with my 5KGs Wedding Album, our reception bill, our engagement night hotel slip, pictures, emails, cards, presents...or is the only proof of a relationship, the fact that two people lived abroad???
I'm sorry, I'm absolutely fuming, in my opinion this is a basic right infringement.

[Platinum]

The question I now have is: are there any alternatives to the EU1 route of residency? As far as I know, there are no other ways of obtaining residency for a non-EU spouse of an EU citizen, because Directive 2004/38/EC is the *only* thing granting me the right to live here with my husband. Is that correct?

Babsie, that's exactly what I thought! If they wish to refuse residency because they suspect a marriage of convenience, they should say that. Why go through the "living in another EU state" rigamarole?

[dsab85]

Platinum, that's exactly what I asked them on friday as well. Of course they didn't have a response to that. They just said they might have to open up another procedure if that interpretation holds up in court.

I have been living in Ireland for more then 6 years. But a confirmation of the current interpretation would more or less force me (EU Citizen) out of the country, as I can't live here with my wife.

I believe there is really nothing anyone can do until the 27th (Judgement Day). If the court agrees with DOJs position, then some people might have to start worrying and consider alternatives.

It's all a big mess, tbh.

[scrudu]

When I first read the new legisation a few months back, I immediately figured that they put that clause in the Irish Law so that they could leverage off other countries Immigration systems. If the non-EU national satisfied that clause, it would basically mean that the non-EU national had already undergone the Immigration procedures of another EU state before coming to Ireland.

Otherwise I dont really understand what the difference is between an EU & Non-Eu couple who have resided in the EU or outside the EU!

Babsie: I guess for your situation, you personally can continue to live her on the basis of your citizenship of an EU country, but as for your spouse How is he currently legally residing here? I realise this isn't the solution you are looking for, but can he get an extention of his current work permit/visa, or apply for long term residency while this mess is being sorted out?

Platinum: Good question. Before this legislation was introduced spouses of Irish and EU citizens applied using the same procedure (e.g. Apply for D Spouse visa to enter the country). The relevant section (Spouse of Irish/EU National) has now been removed from the "Applying For a Visa to Ireland" documentation (from DOJ). This has now been replaced by the following sections:
1) Family Member of Irish Citizen
2) Family Member of EU Citizen (Lawfully Resident in an EU State)
3) Other Family Members of EU Citizen
4) Family Member of EU Citizen (Not Resident in an EU State)

Old Doc: http://www.ireland.org.sg/documents/Vis ... _11_05.doc
New Doc: http://www.justice.ie/80256E01003A21A5/ ... hJan07.doc

After the directive was introduced, it was announced that this replaced all previously existing procedures, but I dont think they thought about the situation of you guys find yourself in

Again, NOT an ideal solution, but you could ask the DOJ if your spouse leaves the country and applies to return while requesting a "D-Spouse Visa", would they be granted such a visa? If they were, they would simply have to present themselves to the GNIB on arrival to get their 5 year Stamp 4 residency permit. Such an application takes 6-8 weeks to be processed.

[Babsie]

So dsab85, your wife only moved to Ireland when you got married? Is that correct? Before that she never legally resided in the EU?
Sorry I'm just checking cause I want to get an idea of whether we fall into the same category?

[Babsie]

Babsie: I guess for your situation, you personally can continue to live her on the basis of your citizenship of an EU country, but as for your spouse How is he currently legally residing here? I realise this isn't the solution you are looking for, but can he get an extention of his current work permit/visa, or apply for long term residency while this mess is being sorted out?

I am EU so I have no problem in staying here.
My husband is on a work permit and yes he can probably renew it, but he's on his sixth permit so I don't think he will be issued with a new one. and seconds a work permit binds you to the employer, you can't leave if you decide that you would like to get more money or just change jobs...

[scrudu]

Babsie: Long term residency is definitely something your husband needs to look into, as one of the rights of LTR is that you dont require Work Permits anymore and can work for any employer. I don't know enough about Work Permits to comment on that route. Again, do check out about the D-Spouse visa application. You could always apply from a N.Ireland address while remaining working in the Republic.

[Babsie]

Babsie: Long term residency is definitely something your husband needs to look into, as one of the rights of LTR is that you dont require Work Permits anymore and can work for any employer. I don't know enough about Work Permits to comment on that route. Again, do check out about the D-Spouse visa application. You could always apply from a N.Ireland address while remaining working in the Republic.

Hi Scrudu, I'm actually not sure I follow you anymore. On what basys would he apply for a LTR? And like I said, he's applied for the D-Spousal visa in august 2006 already and hes been told his application is now on hold due to this court case. And no, he would not apply from a N. Ireland address while working here! It doesn't sound legal at all and we would never ever go down that route.

[scrudu]

His LTR application would be on the basis that he has legally worked & resided for over 5 years in Ireland.

I didn't read in this post about applying for a D-Spouse visa in August 2006. I thought you applied using the EU1 application procedure while residing in Ireland?

[Babsie]

Hi scrudu, he applied for a EU1 spousal visa...aren't they same thing???

[scrudu]

No, the EU1 application is for non-EU spouses of EU citizens who are resident in Ireland (or wish to move to Ireland) for the purposes of work, and who were previously legally resident together in another EU country (Irish interpretation).

The D-Spouse visa application is the procedure used by a non-EU national who wishes to join their Irish spouse in Ireland. This was the application procedure used by non-EU spouses of EU citizens prior to the EU1 application (May 2006).

As I said, if the EU1 now "does not apply to you", perhaps you can go the old route?

[efrenirvana]

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[Babsie]

No, the EU1 application is for non-EU spouses of EU citizens who are resident in Ireland (or wish to move to Ireland) for the purposes of work, and who were previously legally resident together in another EU country (Irish interpretation).

The D-Spouse visa application is the procedure used by a non-EU national who wishes to join their Irish spouse in Ireland. This was the application procedure used by non-EU spouses of EU citizens prior to the EU1 application (May 2006).

As I said, if the EU1 now "does not apply to you", perhaps you can go the old route?

So how does one apply for the D-Spouse visa...

[brownbonno]

People should not be worried about this ''shock & awe'' style of the DoJ.
The Irish authority have been in trouble on the transposition of the EC regulation with the EU parliament.
''The Irish authorities have replied by letter of 25 September 2006. They contest the applicability of Article 5.2 of Directive 2004/38/EC to Ireland. The Commission's services are considering the possibility of initiating infringement proceedings against Ireland on this position in the context of the screening of the Irish transposition measures.''Since the context of the court case is not known,we have to wait and see.
With regard to the Regulation 3(2) as stated on the refusal is under ''Application and transitional provisions.''You can contact the EUropean parliament for better understanding of the Directive 2004/38/EC in relaion to the Irish 3(2).
The issue of work permit, refers to Petition committee as quoted below-
''Concerning the allegation that the petitioner's husband was not allowed to work or travel during those 10 months, it is recalled that, as confirmed by the Court of Justice in the judgment against Spain, the right of entry into the territory of a Member State granted to a third country national who is the spouse of a national of a Member State derives from the family relationship alone. Therefore, the issuance of a residence permit to such a family member is to be regarded, not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of a third country with regard to the provisions of Community law. It was, therefore, not necessary for the petitioner's husband to wait for the issue of the residence card in order to work in Spain or to request a visa to travel to Ireland.

The new Directive 2004/38/EC expressly provides that the possession of a residence card or of a certificate attesting submission of an application for a family member residence card may under no circumstances be made a precondition for the exercise of a right, such as the right to work, since entitlement to such rights may be attested by any other means of proof.''
There is no need to minimise the scope of your rights,even if the EC directive was not specifically specific to the IRISH 3(2),but common sense of equity and fairness will certainly condemn the behaviour of the DoJ which is very very disrepectful to families and the consumation of marriages.

[scrudu]

As I said, I'm not sure it will apply to you (non-EU marriage to an EU citizen), but worth asking DOJ if you can apply this way.

To apply for a D-Spouse visa, the applicants needs to be outside of Ireland at time of application. They need to include the following to the nearest Irish Embassy. Processing times are approx 6-8 weeks:

• o Fully completed and signed VA1 Application Form “Application for Visaâ€