Section 7(1)(a) of SI 656 of 2006

[Ben]

Directive 2004/38/EC, Article 9(2) (in relation to administrative formalities for family members who are not nationals of a Member State) states:

The deadline for submitting the residence card application may not be less than three months from the date of arrival.

It would, therefore, seem perfectly reasonable to apply to the DoJ, using form EU1, as soon as possible after arriving in Ireland, but no later than 3 months, right?

Not according to the DoJ..

The Department of Juctice's latest trick is to return applications from family members, who apply using form EU1 within 3 months of their arrival in the State.

The DoJ accompanies the rejected application with a letter stating the reason for the rejection, quoting Section 7(1)(a) of SI 656 of 2006. They then go on (in the letter), to request that the applicant continues to reside in Ireland for 3 months first, then re-apply using form EU1. So, effectively, you're only eligible to apply for a Residence Card, as the family member of an EU citizen, from the day you become an overstayer. Can you believe it?

To quote Section 7(1)(a) of SI 656 of 2006:

A family member of a Union citizen who is not a national of a Member State and who has been resident in the State for not less than 3 months shall apply to the Minister for a residence card.

Not only is this mind bogglingly illogical, it is, surprise, surprise, another example of the DoJ's disregard for the spirit of Directive 2004/38/EC.

If someone can give any suggestions as to the possible intended purpose of Section 7(1)(a) of SI 656 of 2006, I'd be much obliged. To me, it seems totally bizarre in every way.

[ca.funke]

Hi Benifa,

I totally agree - this is not only illogical, it is IMHO plainly illegal.

Thanks for posting this!

The Idea of the directive, as far as I get it, is that every foreigner is OBLIGED to register. The onus is on the foreigner to register, and if he does not register within a certain timeframe, he may be liable to a penalty.

The timeframe before a penalty may be imposed for NOT registering must be at least 3 months, but at the discretion of the member-state this limit may be extended. All this, IMHO, makes sense.

Ireland, usual Rodeo-style, simply turns this around to prevent/delay according applications.

I am beginning to wonder if the people involved on the legislative side have an agenda or are plain stupid?

As usual I will lodge a complaint with the commission about this.

To be honest, my hope in Ireland as well as the EU and their respective institutions are rapidly fading by now.

Thanks again for this valuable input!

Looking 4ward to reading more opinions about this.

[ca.funke]

This is my complaint, as filed with the commission:

---------- Original message ----------
From: Christian
Date: Thu, Jul 3, 2008 at 7:07 PM
Subject: Complaint against the Republic of Ireland
To: sg-plaintes@ec.europa.eu


Dear Sir or Madam,

I hereby lodge yet another complaint against the Republic of Ireland.

Directive 2004/38/EC (available here), article 9, sections 2 and 3, state:

### ### ### ### ### ### ### ###
2. The deadline for submitting the residence card application
may not be less than three months from the date of arrival.

3. Failure to comply with the requirement to apply for a
residence card may make the person concerned liable to
proportionate and non-discriminatory sanctions.
### ### ### ### ### ### ### ###

The intention of this clause is, that every relevant foreigner should apply for the mentioned residence card as soon as possible. Member States may impose a penalty for foreigners that fail to apply. The deadline for penalties imposed for NOT applying may not be less than 3 months.


In Ireland, directive 2004/38/EC is implemented through "STATUTORY INSTRUMENT S.I. No. 656 of 2006" (available here)

Section 7(1)(a) states:

### ### ### ### ### ### ### ###
A family member of a Union citizen who is not a national of a Member State and who has
been resident in the State for not less than 3 months shall apply to the Minister for a
residence card.
### ### ### ### ### ### ### ###

Ireland turns the intention of the directive upside down, trying to deter applications by only allowing them after 3 months of residency at the earliest.

Applications filed before being resident for at least 3 months are returned, citing this piece of legislation, which is clearly contradicting 2004/38/EC.

Please take appropriate measures to make Ireland comply with directive 2004/38/EC.

Thanks and regards, Christian

[MAKUSA]

Directive 2004/38/EC, Article 9(2) (in relation to administrative formalities for family members who are not nationals of a Member State) states:

The deadline for submitting the residence card application may not be less than three months from the date of arrival.

It would, therefore, seem perfectly reasonable to apply to the DoJ, using form EU1, as soon as possible after arriving in Ireland, but no later than 3 months, right?

Not according to the DoJ..

The Department of Juctice's latest trick is to return applications from family members, who apply using form EU1 within 3 months of their arrival in the State.

The DoJ accompanies the rejected application with a letter stating the reason for the rejection, quoting Section 7(1)(a) of SI 656 of 2006. They then go on (in the letter), to request that the applicant continues to reside in Ireland for 3 months first, then re-apply using form EU1. So, effectively, you're only eligible to apply for a Residence Card, as the family member of an EU citizen, from the day you become an overstayer. Can you believe it?

To quote Section 7(1)(a) of SI 656 of 2006:

A family member of a Union citizen who is not a national of a Member State and who has been resident in the State for not less than 3 months shall apply to the Minister for a residence card.

Not only is this mind bogglingly illogical, it is, surprise, surprise, another example of the DoJ's disregard for the spirit of Directive 2004/38/EC.

If someone can give any suggestions as to the possible intended purpose of Section 7(1)(a) of SI 656 of 2006, I'd be much obliged. To me, it seems totally bizarre in every way.

Hi Benifa, did you get this rejection recently? that means i would definetly be getting a rejection letter, i came in on the 23rd of june, 2008- was told by immigration office to register within a month, went to GNIB to get myself registered and was told to apply for the EU1 first and then come back with acknowledgement slip, so basically i cant register myself in the state and i cant apply for EUI..If you got this letter what are you going to do next? please let me know so that i can prepare myself for this bastards.

[Ben]

Anyone any suggestions for improvement?
Planning to file this complaint tomorrow:

### ### ### ###

Dear Sir or Madam,

I hereby lodge a complaint against the Republic of Ireland.

Directive 2004/38/EC (attached, and available here), article 9, sections 2 and 3, state:

### ### ### ### ### ### ### ###
2. The deadline for submitting the residence card application
may not be less than three months from the date of arrival.

3. Failure to comply with the requirement to apply for a
residence card may make the person concerned liable to
proportionate and non-discriminatory sanctions.
### ### ### ### ### ### ### ###

The intention of this clause is, that every relevant foreigner should apply for the mentioned residence card as soon as possible. Member States may impose a penalty for foreigners that fail to apply. The deadline for penalties imposed for NOT applying may not be less than 3 months.


In Ireland, directive 2004/38/EC is implemented through "STATUTORY INSTRUMENT S.I. No. 656 of 2006" (attached, and available here)

Section 7(1)(a) states:

### ### ### ### ### ### ### ###
A family member of a Union citizen who is not a national of a Member State and who has
been resident in the State for not less than 3 months shall apply to the Minister for a
residence card.
### ### ### ### ### ### ### ###

Ireland turns the intention of the directive upside down, trying to deter applications by only allowing them after 3 months of residency at the earliest.

Applications filed before being resident for at least 3 months are returned, citing this piece of legislation, which is clearly contradicting 2004/38/EC.

Please take appropriate measures to make Ireland comply with directive 2004/38/EC.

Thanks and regards.

Good work, ca.funke.

I shall be sending off a similar complaint also, together with a Solvit case.

@First-Class Moron - this case is in relation to an application for one of my family members. I am British.

[MAKUSA]

Anyone any suggestions for improvement?
Planning to file this complaint tomorrow:

### ### ### ###

Dear Sir or Madam,

I hereby lodge a complaint against the Republic of Ireland.

Directive 2004/38/EC (attached, and available here), article 9, sections 2 and 3, state:

Hi Benifa, mate is this family your spouse or other family members, dont mean to ask intrusive questions just want to prepare myself for rejection so that i have plan B. Ta
### ### ### ### ### ### ### ###
2. The deadline for submitting the residence card application
may not be less than three months from the date of arrival.

3. Failure to comply with the requirement to apply for a
residence card may make the person concerned liable to
proportionate and non-discriminatory sanctions.
### ### ### ### ### ### ### ###

The intention of this clause is, that every relevant foreigner should apply for the mentioned residence card as soon as possible. Member States may impose a penalty for foreigners that fail to apply. The deadline for penalties imposed for NOT applying may not be less than 3 months.


In Ireland, directive 2004/38/EC is implemented through "STATUTORY INSTRUMENT S.I. No. 656 of 2006" (attached, and available here)

Section 7(1)(a) states:

### ### ### ### ### ### ### ###
A family member of a Union citizen who is not a national of a Member State and who has
been resident in the State for not less than 3 months shall apply to the Minister for a
residence card.
### ### ### ### ### ### ### ###

Ireland turns the intention of the directive upside down, trying to deter applications by only allowing them after 3 months of residency at the earliest.

Applications filed before being resident for at least 3 months are returned, citing this piece of legislation, which is clearly contradicting 2004/38/EC.

Please take appropriate measures to make Ireland comply with directive 2004/38/EC.

Thanks and regards.

Good work, ca.funke.

I shall be sending off a similar complaint also, together with a Solvit case.

@First-Class Moron - this case is in relation to an application for one of my family members. I am British.

[Ben]

Sorry is it in relation to your spouse or other family members

Mother of my spouse, who is dependant.

[MAKUSA]

Sorry is it in relation to your spouse or other family members

Mother of my spouse, who is dependant.

Thanks.

[ca.funke]

superfluous post, but...

Honoring benifa's following rhyme (thanks) I should mention that this post contained an email I sent to GNIB/DoJ/INIS, asking the same question as in the complaint above to. I hoped that they see that they are (accidentally) in error, and the problem could be easily rectified.

This is not the case, the "error" is a deliberate decision to deter and delay applications. This can (and will) be rectified through the Commission and/or the courts, as GNIB/DoJ/INIS do not talk to normal people (like me).

Unfortunately this will take a long time and will be followed by a hefty fine for the state. But what am I writing here - I'm just a "stoopid" citizen, so I don't know about all this

[Ben]

Great work, Christian.

I very much look forward to reading the reply. Though I'm afraid it will be along the lines of..

• "Our ears are closed, and eyes are too. Why should we even listen to you?

• The truth is there in black and white, and yet we still believe we're right.

• We make the rules as we go along, how dare you say that we are wrong?

• Right you are, but we ignore. We close one eye to EU law.

• Wait three months, then processing six, nine months wait's our latest trick.

• Income though you may be losing, you came here - it's not our choosing.

• Why do we like to drag our feet? We hope you'll go! (but we're discreet).

• Move to Ireland? Do it our way. Yours sincerely, the DoJ."

[ca.funke]

superfluous post again - sorry...

[Ben]

In the past few minutes I have received a letter from the European Commission, in response to a complaint that I have made to them against Ireland. My complaint is in relation to two issues; firstly, Section 7(1)(a) of SI 656 of 2006, which I believe to be an incorrect interpretation of Directive 2004/38/EC. Secondly, the prohibition that Ireland is placing on eligible family members (of EU citizens who are exercising EU Treaty rights in Ireland), from taking up employment in Ireland prior to the issuance of a Residence Card (recently, the DoJ have been endorsing the passports of such family members, explicitly prohibiting employment).

The European Commission have agreed that the two issues I have raised are not in line with Community law. "The Commission have asked to have (my) complaint registered as an official complaint by the Secretariat-General. The Commission envisages taking (my) complaint into account within the framework of overall examination of compliance of the Irish legislation with the Directive, which is being finalised.".

The second issue, the Commission have informed me, is the subject of numerous complaints that have already been made to the Commission. "The Commission is, however, pursuing several complaints were family members awaiting issue of a Residence Card were not permitted to work in Ireland."

[ca.funke]

* sigh *

I found a new (deliberate?) blunder in the transposition.

Actually what DoJ is doing here is becoming more-and-more childish.

They do not want to issue EU-4-Fam-cards, if at all at the very latest legal minute, as if this would cause the plague...

Here's the blunder:

2004/38/EC, Article 10, Paragraph 1:
The right of residence of family members of a Union
citizen who are not nationals of a Member State shall be
evidenced by the issuing of a document called ‘Residence card
of a family member of a Union citizen’ no later than six
months from the date on which they submit the application. A
certificate of application for the residence card shall be issued
immediately.

S.I. No. 656 of 2006, Article 7(2)
Where the Minister is satisfied that it is appropriate to do so, he
or she shall, within 6 months of the date of receiving an application
made under paragraph (1)(a), cause to be issued a residence card
containing the particulars set out in Schedule 3 in respect of the
family member concerned.

2004/38/EC demands, that the applicant physically holds the card in his hands no later than 6 months after the application.

S.I. No. 656 of 2006 only asks that the card is approved after 6 months, leaving unspecified as to when the card actually has to be delivered.

This is 3rd-world country style, maybe worse.

[Sampa]

Hi Benifa

A couple that I know got their application (EU1) refused by DoJ due to not living in Ireland more than 3 months, thus, they have to wait 3 months to apply + 6 months to get the answer.

I've read that one of your family members has undergone the same situation. Has he/she been able to sort out that? Does he/she need to wait 3 months? I'd appreciate if you could shed some light as I could guide my friends.

Hi Ca.funke

Would you mind dropping me a line to let me know details about the lawyer you've been talking to?

Folks, I'd like to thank you in advance.
Cheers

[ca.funke]

Hi Sampa,

I posted something about the waiting-time for EU1/EU4Fam applicants here.
(Actually I wonder why there is absolutely no feedback so far, as if I'm right this would have major consequences )

Also, please see my above complaint (3rd post in this thread) about the not-before-3-months-issue that I lodged with the European Commission.

Please urge the affected people to lodge a complaint with the commission (sg-plaintes@ec.europa.eu) and contact the Irish Solvit-center (solvit@entemp.ie)

It suffices to send more-less informal emails, but they should contain full personal details, so the respective authorities can get back to you.

Regards, Christian

PS: PM coming...

[MAKUSA]

Hi Sampa,

I posted something about the waiting-time for EU1/EU4Fam applicants here.
(Actually I wonder why there is absolutely no feedback so far, as if I'm right this would have major consequences )

Also, please see my above complaint (3rd post in this thread) about the not-before-3-months-issue that I lodged with the European Commission.

Please urge the affected people to lodge a complaint with the commission (sg-plaintes@ec.europa.eu) and contact the Irish Solvit-center (solvit@entemp.ie)

It suffices to send more-less informal emails, but they should contain full personal details, so the respective authorities can get back to you.

Regards, Christian

PS: PM coming...

Dear Mary,

I am directed by the Minister for Justice, Equality and Law Reform to refer
to your email attached below.

In light of the European Court of Justice ruling in “Metock“of 25th July
2008, all applications rejected under Regulation 7(1)(a) of SI 656 of 2006
will now be processed from the date of original receipt by this office
under the provisions of Directive 2004/38/EC (the “Directive“) and a
decision on each application will issue within six months of this date.

Currently the Department is writing to all such applicants to inform them
of this and to request that they forward the following documents if they
have not already been submitted:

1. Original Passport for the applicant and the Passport/National ID of
the EU National
2. Evidence of the current activities of the EU National e.g. employment
contract
3. Evidence of the relationship with the EU National e.g. marriage
certificate.
4. Evidence of residence e.g. utility bills, letting agreement.
5. Two signed passport photographs for the applicant and EU National.

Regards,


XXXX
EU Treaty Rights Section
Dept. Of Justice, Equality and Law Reform
An Roinn Dli & Cirt, Comhionannais & Athchóirthe Dli
13/14 Burgh Quay/ 13/14 Cé Burgh
Dublin 2/ Baile Atha Cliath 2
Ireland/ Éire