7(1)(a) of SI 656 of 2006- DOJ'S TRICKS

[MAKUSA]

Dear Mary,

I refer to your recent email correspondence re: 7(1)(a) of SI 656 of 2006/
Article 9(2) of 2004/38/EC.

It is unfortunate that you seem to have been given conflicting information.
As regards the issue of when an applicant can apply for residency, I would
like to provide the following clarification:

The Department cannot accept any application for residency under EU Treaty
Rights, until the applicant has been resident in the State for at least 3
months.

This is due to Article 9(2) of 2004/38/EC which states:
"The deadline for submitting the residence card application may notbe less
than three months from the date of arrival"

This means that applications can only be made after3 months from the date
of arrival. If applications could be made within 3 months then the above
article would say "...may not be more than three months..."

This is transposed into Irish Law by regulation 7(1)(a) of SI 656 of 2006
which 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."

Your partner can apply for a residence card 3 months after arrival in the
State and the application, if everything is in order, will be accepted and
acknowledged as normal.

I hope this clarifies the matter.

Regards,

Rahim O'Neill
RKONeill@justice.ie

[MAKUSA]

Dear Mary,

I refer to your recent email correspondence re: 7(1)(a) of SI 656 of 2006/
Article 9(2) of 2004/38/EC.

It is unfortunate that you seem to have been given conflicting information.
As regards the issue of when an applicant can apply for residency, I would
like to provide the following clarification:

The Department cannot accept any application for residency under EU Treaty
Rights, until the applicant has been resident in the State for at least 3
months.

This is due to Article 9(2) of 2004/38/EC which states:
"The deadline for submitting the residence card application may notbe less
than three months from the date of arrival"

This means that applications can only be made after3 months from the date
of arrival. If applications could be made within 3 months then the above
article would say "...may not be more than three months..."

This is transposed into Irish Law by regulation 7(1)(a) of SI 656 of 2006
which 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."

Your partner can apply for a residence card 3 months after arrival in the
State and the application, if everything is in order, will be accepted and
acknowledged as normal.

I hope this clarifies the matter.

Regards,

Rahim O'Neill
RKONeill@justice.ie

Dear Mary,

The following is an explanation of how your partner should go about
registering with GNIB:

Your partner should report to GNIB and ask to be registered on a Stamp3
(dependent status) for the remainder of the 3 month period since his entry
into the state.

After 3 months from date of entry has elapsed, your partner should submit
an application for EU Treaty Rights to this office. If accepted, we will
immediately issue a receipt for the application.

Your partner can then return to GNIB with this receipt and ask to be
registered on a Stamp 3 for six months. During this six month period the
Department will process your partner's application for residency under EU
Treaty Rights. If the application is successful, we will then issue a
letter that your partner can take back to GNIB to register for a Stamp 4
EUFam card valid for up to 5 years.

If for any reason you have difficulty registering at GNIB, you should ask
to speak to a supervisor and inform them you have been advised as above.

I hope this clarifies the situation for you,

Regards,

Rahim O'Neill

[ca.funke]

I hope this clarifies the situation for you,

Regards,

Rahim O'Neill

The only thing that's left to clarify is that, obviously, the people in GNIB/DoJ do not (want to) understand 2004/38/EC.

[Ben]

The Department cannot accept any application for residency under EU Treaty Rights, until the applicant has been resident in the State for at least 3 months.

This is due to Article 9(2) of 2004/38/EC which states:
"The deadline for submitting the residence card application may notbe less
than three months from the date of arrival"

This means that applications can only be made after3 months from the date of arrival. If applications could be made within 3 months then the above article would say "...may not be more than three months..."

This is transposed into Irish Law by regulation 7(1)(a) of SI 656 of 2006
which 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."

I think the DoJ will find that although Directive 2004/38/EC does indeed state, "The deadline for submitting the residence card application may not be less than three months from the date of arrival", it simply means that Member States cannot set the deadline to apply for a residence card for within three months of arrival. It does not make it reasonable for the DoJ to (quite arrogantly) reject applications that are made within these first three months. Correct me if I'm wrong, but I know of no other Member States that practice this.

Dear Mary,

The following is an explanation of how your partner should go about
registering with GNIB:

Your partner should report to GNIB and ask to be registered on a Stamp3
(dependent status) for the remainder of the 3 month period since his entry
into the state.

After 3 months from date of entry has elapsed, your partner should submit an application for EU Treaty Rights to this office. If accepted, we will immediately issue a receipt for the application.

Your partner can then return to GNIB with this receipt and ask to be
registered on a Stamp 3 for six months. During this six month period the
Department will process your partner's application for residency under EU
Treaty Rights. If the application is successful, we will then issue a
letter that your partner can take back to GNIB to register for a Stamp 4
EUFam card valid for up to 5 years.

If for any reason you have difficulty registering at GNIB, you should ask
to speak to a supervisor and inform them you have been advised as above.

I hope this clarifies the situation for you,

Regards,

Rahim O'Neill

With the exception of the pointless extra three month waiting time, I don't find the above procedure unreasonable, tbh. So long as everyone in the DoJ / GNIB adheres to it.

It's a pity it's not been communicated to the public yet, such as on the Citizens Information website. Oh yes, I nearly forgot, the DoJ like to make up their procedures as they go along, don't they.

[ca.funke]

Hi all,

I find the above procedure not reasonable at all.

• The extra three months waiting before the application is accepted are illegal.
• Stamp 3 will not allow the spouse to work in the meantime.

If DoJ/GNIB really need six months to determine if an EU4Fam-application is legitimate, then this is their decision and unfortunately barely within the EU-Law.

Issuing the applicants with Stamp 3 for the waiting-time is NOT legal, as it does not allow working.

After all the EU4Fam-Card is only a practical way to proove that this law applies for you.

You are (legally) eligible for working immediately after you leave the airport after arriving.

If I'm not entirely wrong, this can be compared to your citizenship and your passport:

I'm German, and I use my passport to proove this. If I loose my passport, or if I had never applied for one since I was born, I'd still be German, and still eligible for all rights I have which are derived from that.

As a consequence, all applicants for EU1/EU4Fam have the right to work while their application is processed.

Way out for GNIB/DoJ:
Process EU1 / EU4-Fam applications immediately, which should not be too hard as it only takes 5 minutes?!

[MAKUSA]

Hi all,

I find the above procedure not reasonable at all.

• The extra three months waiting before the application is accepted are illegal.
• Stamp 3 will not allow the spouse to work in the meantime.

If DoJ/GNIB really need six months to determine if an EU4Fam-application is legitimate, then this is their decision and unfortunately barely within the EU-Law.

Issuing the applicants with Stamp 3 for the waiting-time is NOT legal, as it does not allow working.

After all the EU4Fam-Card is only a practical way to proove that this law applies for you.

You are (legally) eligible for working immediately after you leave the airport after arriving.

If I'm not entirely wrong, this can be compared to your citizenship and your passport:

I'm German, and I use my passport to proove this. If I loose my passport, or if I had never applied for one since I was born, I'd still be German, and still eligible for all rights I have which are derived from that.

As a consequence, all applicants for EU1/EU4Fam have the right to work while their application is processed.

Way out for GNIB/DoJ:
Process EU1 / EU4-Fam applications immediately, which should not be too hard as it only takes 5 minutes?!

CA Funke , i fully agree with you but i think that most people working for GNIB or DOJ are semi illiterate with little or less educational qualifications, so how can they expect people like that to competent. Its guess work

[Ben]

Hi all,

I find the above procedure not reasonable at all...

I don't disagree with you at all, ca.funke. You are correct on all counts, afaics.

I was referring to the administrative process that the DoJ advised First-Class Moron of, being reasonable.

Administrative process aside, the action of deliberately delaying the issuance of a Residence Card to those entitled to it, is, of course, in breach of Directive 2004/38/EC.

However, as you have quite rightly pointed out, a person's right to residency and employment is derived from their status as an EU citizen or family member of an EU citizen, and not from possession of a Residence Card.

[ca.funke]

this topic and this (Section 7(1)(a) of SI 656 of 2006) topic should, IMHO, be merged.

Hi all,

I send a query about this to GNIB/DoJ.

Should I get a reply, i will post it here.

### ### ###

---------- Original message ----------
From: Christian
Date: Wed, Jul 9, 2008 at 5:30 PM
Subject: Directive 2004/38/EC // S.I. No. 656 of 2006
To: RKONeill@justice.ie


Dear Mr O'Neill,

I found your address via a forum (www.immigrationboards.com) of which you are probably aware. I do apologise for contacting you direct. Could you please send me a reply or forward the following questions to the relevant department?

Thanks a lot!

My query is about the fact that EU1-applications are not accepted before an applicant has resided in Ireland for at least 3 months.

I will come to very specific questions after citing the relevant passages of the relevant laws:

Directive 2004/38/EC (available here), article 9, states:

### ### ###
Administrative formalities for family members who are
not nationals of a Member State

1. Member States shall issue a residence card to family
members of a Union citizen who are not nationals of a
Member State, where the planned period of residence is for
more than three months.

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 Irish transposition S.I. No. 656 of 2006, Section 7(1)(a) (available here) 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.
### ### ### ### ### ### ### ###

Your department maintains that applications cannot be accepted before applicants have completed a minimum stay of 3 months, as stated in the Irish transposition of 2004/38/EC.

I have specific reasons to believe that the Irish law is not properly transposing the Directive.

Therefore, could you please comment on the following:


Point 1:
Section 1 of the Directive states "..where the planned period of residence is for more than three months..."

If an application can only be accepted after three months of presence, the person would -by definition- already be present for three months. It would not make sense to mention a "planned" period of more than three months.

This already indicates that an application should be lodged beforehand.


Point 2:
Section 2 of the Directive states "The deadline for submitting the residence card application may not be less than three months from the date of arrival."

When I was in college, everyone was dreading deadlines. Deadlines, in their nature, mean that something should be done before the deadline occurs, not after. In this case, it could be re-phrased as

• The deadline for applications is three months.
• The deadline for applications may NOT be less than three months.
• The deadline for applications MAY be more than three months.

The intention of this is to speed up applications, encouraging applications to be filed as early as possible.


Point 3:
Section 3 mentions "proportionate and non-discriminatory sanctions" to which "the person concerned" is "liable to", if he fails "to comply with the requirement to apply..."

If your department's view is right, could you please explain what this paragraph means? Who is, under which circumstances, liable to sanctions?



I would be glad to hear from you.

Thanks and regards, Christian (...)