Problems with Directive 2004/38/EC implementation in Ireland

[Ben]

Part 1 - issues with the Explanatory Leaflet for FORM EU1 (APPLICATION FOR A RESIDENCE CARD For non-EEA family member):

The Department of Justice has recently released a document entitled "Explanatory Leaflet for FORM EU1", which is dated 27/04/2010 and is available for download on this website. The purpose of the Explanatory Leaflet seems to be to assist completion of form EU1 - application for a "Residence card of a family member of a Union citizen".

There are multiple problems with this Explanatory Leaflet.

• Section 5 of the Explanatory Leaflet is entitled "Immigration status during application process" and says,
  
  "Subject to consideration of your initial application, you may be provided with a Stamp 3 endorsement on your passport which is valid for the period of the application process only, i.e. a maximum of 6 months. This would enable you to remain in the State during this period on condition that you do not enter into employment or engage in business in the State. Please note that receipt of this Stamp 3 endorsement is not an acknowledgement of an entitlement under EU Treaty Rights. This will be determined in due course when your application is either approved or refused."
  
  For a "family member" (as defined in § 2(2) of Directive 2004/38/EC), this is unlawful. The issuance of "Stamp 3", as is described in the Explanatory Leaflet, causes to be endorsed in the person's passport a stamp which states that the holder is not permitted to engage in employment in the state. This means that the Department of Justice is seeking to remove the right to work of a person described in § 2(2) of Directive 2004/38/EC for a period of up to six months (until the issuance of the "Residence card of a family member of a Union citizen"). This is incompatible with Directive 2004/38/EC which clearly defines the right of residence of the family member of an EU national as being derived from the family member's relationship to an EU national who is exercising his right to move an reside in the territory of another Member State. The right of residence of the family member of an EU national is not conditional on the issuance of a document by the host Member State.
  
  This is clarified by the European Commission in this document: "Community legislation no longer obliges third country family members to obtain any kind of residence permits in order to reflect the fact that you have the right of residence because you meet the conditions and not because the host Member State “permittedâ€

[koded]

As I said before, this people are incompetent. There are so many lapses in most things I see them do.
They used to ask for bank statement of the applicant and his/her Eu citizen. And I dont understand how they expect the applicant to have a bank statement when they are not working and depends on their Eu spouse. Of course, I know some applicants can have source of income and therefore open a bank account. But I am just looking at the real sense of it. someone who they are not alow to work will still need to submit bank statement.
Again, PRTb or what it is called, takes up to 10 weeks now to process and they know about this. Still they are demanding for it from an applicant. 10 weeks is roughly 3 months and this applicant was giving 1 months visa at the airport.
Like you said Ben, this people dont have any rules or guide for the processing of Residence card.
Even this their delay in the process of Residence Card is just a way of trying to know if the Eu citizen will lose her or his job.

[kabuki]

Yes, they are most definitely incompetent. I first entered Ireland on a stamp 1A (trainee accountant). When I arrived at the airport and stated that is why I was entering the country, the immigration officer there called me a lire, making some comment about bringing in foreign nationals to take these trainee jobs the Irish can have. It took everything I had to bite my tongue. I really wanted to make a comeback about how he probably has family illegally working in the US, why are they there taking jobs from people.

The country is a complete mess when it comes to immigration. I feel sorry for anyone who has to deal with it. I can't wait to be done with it. If I ever return, it will be after I get my Dutch citizenship through my partner.

I know that many EU/EEA countries have had issues, but none like Ireland. If other countries can process applications within 2 months, Ireland can too.

[thesmiler]

Ben - what I don't understand. You keep saying it is against the law (at least for spouses) because they put a stamp in your passport giving you stamp 3 which means you can't work. You say they would be perfectly ok giving you no stamp, because you have the right to stay and work anyway, even without any stamp, application pending.

But aren't they staying that you may go to the immigration office and may get a Stamp 3 there? I don't see a requirement for people to do this - if they think they're better of without. So are they really breaking the law by allowing people to get a Stamp 3 - if they want?

[kabuki]

Ben - what I don't understand. You keep saying it is against the law (at least for spouses) because they put a stamp in your passport giving you stamp 3 which means you can't work. You say they would be perfectly ok giving you no stamp, because you have the right to stay and work anyway, even without any stamp, application pending.

But aren't they staying that you may go to the immigration office and may get a Stamp 3 there? I don't see a requirement for people to do this - if they think they're better of without. So are they really breaking the law by allowing people to get a Stamp 3 - if they want?

That is one way to look at it; however, that choice could possibly cause more issues. Even though you technically shouldn't need a stamp in this scenario, I could see immigration putting up a fuss if you do not keep your residence up-to-date with a stamp in your passport. Also, many employers won't hire you without a valid stamp that entitles you to work, even if you show them that you have submitted an EU1 application and the rules associated with that.

[IrishTom]

Well Ben, since we are talking about illegal acts, can we start with the illegal occupation of my country?

[Ben]

Ben - what I don't understand. You keep saying it is against the law (at least for spouses) because they put a stamp in your passport giving you stamp 3 which means you can't work. You say they would be perfectly ok giving you no stamp, because you have the right to stay and work anyway, even without any stamp, application pending.

But aren't they staying that you may go to the immigration office and may get a Stamp 3 there? I don't see a requirement for people to do this - if they think they're better of without. So are they really breaking the law by allowing people to get a Stamp 3 - if they want?

I think you have a point here. The DoJ can not force a family member of a Union citizen to have a Stamp 3 endorsement placed in his passport. If they were to force this, then yes, it would be unlawful.

So by merely inviting a family member of a Union citizen to have a Stamp 3 endorsement placed in his passport, you may be correct that no law has been broken. However, the DoJ should make clear that to receive a temporary Stamp 3 endorsement is voluntary, as opposed to being a requirement.

[Ben]

Hi Tom,

Well Ben, since we are talking about illegal acts, can we start with the illegal occupation of my country?

May I refer you to boards.ie for discussion on that mate?

[Ben]

As at 12:03 today, the link to the Explanatory Leaflet for FORM EU1 on the website of the Irish Naturalisation and Immigration Service is dead. It would appear that the document has been taken down.

[Ben]

As at 12:11 today, the link to Form EU1 on the website of the Irish Naturalisation and Immigration Service now points to a "new" EU1 form - "Version 2.0 - 05/2010". Consequently, many of the issues listed in Part 1 in the first post may be outdated. The original EU1 form is available for download here.

[iluvireland]

ben thank for you giving us lots of time,,,,at least i can see some hope...

[thesmiler]

Ben: The new EU1 form only mentions "Partnership certificate" and not any other satisfactory evidence anymore for partners. As far as I know there is nowhere in Ireland where such partnership certificate could be granted.
Am I right that therefore they will have to accept other satisfactory evidence of a durable relationship as they did in the past?

[IrishTom]

Hi Tom,

Well Ben, since we are talking about illegal acts, can we start with the illegal occupation of my country?

May I refer you to boards.ie for discussion on that mate?

A wee joke, mate. Fair play to ye all for standing up to the powers that be.

[Ben]

Ben: The new EU1 form only mentions "Partnership certificate" and not any other satisfactory evidence anymore for partners. As far as I know there is nowhere in Ireland where such partnership certificate could be granted.
Am I right that therefore they will have to accept other satisfactory evidence of a durable relationship as they did in the past?

In the new EU1 form, "Partnership certificate" refers to that held by registered partners (same gender), who have contracted a registered partnership as equivalent to marriage. Such persons are "family members" as described in § 2(2)(b) of the Directive.

Unmarried partners are different. The partner with whom the Union citizen has a durable relationship, duly attested, is not a "family member" but a "beneficiary" (§ 3(2)(b) of the Directive). By nature, unmarried partners will not have an official document or certificate describing them as unmarried partners, which is why other satisfactory evidence of a durable relationship should be submitted.

[thesmiler]

In the new EU1 form, "Partnership certificate" refers to that held by registered partners (same gender), who have contracted a registered partnership as equivalent to marriage. Such persons are "family members" as described in § 2(2)(b) of the Directive.

Unmarried partners are different. The partner with whom the Union citizen has a durable relationship, duly attested, is not a "family member" but a "beneficiary" (§ 3(2)(b) of the Directive). By nature, unmarried partners will not have an official document or certificate describing them as unmarried partners, which is why other satisfactory evidence of a durable relationship should be submitted.

Thanks Ben. I must say though, the form alone is still really really unclear. Also the requirements for utility bills of both parties is ridiculous. Are you supposed to get your utility bills in both names? We get them taken out of our joint account, but they're in my name...

[Ben]

Also the requirements for utility bills of both parties is ridiculous. Are you supposed to get your utility bills in both names? We get them taken out of our joint account, but they're in my name...

I agree, it's not a requirement.

[Ben]

As at 14:25 today, the link to the Explanatory Leaflet for FORM EU1 on the website of the Irish Naturalisation and Immigration Service remains dead. The result is that the issues listed above (in Part 1) which relate to the discrepancies between the Explanatory Leaflet and the EU1 form may be redundant. We will not know for sure until the link to the Explanatory Leaflet is restored (in some form).

I will leave the points above in tact for now, but those points which highlight the discrepancies between the two documents may be removed later if it turns out that the discrepancies are resolved. The main problem at the moment appears to be the issuance of Stamp 3 - the Department of Justice's illegal prohibition of employment to persons entitled under EC law to work here. However, as pointed out by thesmiler, it needs to be established whether the DoJ are forcing temporary Stamp 3 on family members, or merely inviting them to opt for it voluntarily.

EDIT: 11/05/10, 12:42. Sections in Part 1 which highlight discrepancies between the Explanatory Leaflet and the EU1 form have been removed, as these discrepancies were resolved in the release of the new EU1 form (Version 2.0 - 05/2010).

[kabuki]

However, as pointed out by thesmiler, it needs to be established whether the DoJ are forcing temporary Stamp 3 on family members, or merely inviting them to opt for it voluntarily.

Even if it is voluntary, by not issuing a stamp 4, they are essentially prohibiting the partner of an EU national the right to work. Employers in Ireland will usually not hire someone unless they have a stamp in their passport that entitles them to work. I have been asked to show the stamp 4 at every interview. There has been a recent post on here about an employer wanting to see the stamp as well: http://www.immigrationboards.com/viewtopic.php?t=56667.

Whether the stamp 3 is mandatory or not isn't the only issue. The issue is that they are not giving a stamp 4 or possibly any stamp with entitlement to work to those who are legally entitled to work according to EU law.[/url]

[Monifé]

Hi guys,

Was talking to my solicitor today and she said that even the people who are already on a temporary stamp 4, will have to change to a temporary stamp 3 (on the 1st June) until their application is processed.

I think this is highly unfair. In my partners (non-eu) case, I think he is most definitely going to be issued with a stamp 3 because we only submitted our application last week. Although rough, I am starting to come to terms with it. But I feel really sorry for those whose application was sent in a few months ago and already have a job. For once I really do think DOJ are messing with peoples lives and how unfair it is to change peoples statuses and up root their families circumstances.

She said that DOJ will be writing to people to inform them of this.

Hopefully what they are doing is illegal, she said if the advice of the barristers is that it is unlawful, they will be taking it to the high court.

Fingers crossed

[Ben]

Yesterday I received a call from Jamie Smyth of the Irish Times, in relation to my open letter to the Department of Justice.

From today's paper:

[quote="The Irish Times"]THE GOVERNMENT is removing the right to work for non-EU family members of EU citizens while they await a decision on their right to residency in Ireland.

The decision reflects concerns over rising unemployment and the Department of Justice’s ongoing campaign targeting so-called “sham marriagesâ€

[koded]

I dont really understand DOJ, does it mean they dont read or research or have a good lawyer that will interprete the law for them.
Sham Marriages they are refering all the time have been said several times that Residence card can be revoke in case if sham marriage is discovered.
Again, why will it take them 6 months to process residence card.

[Ben]

As at 11:30 today, the link to the Explanatory Leaflet for FORM EU1 on the website of the Irish Naturalisation and Immigration Service has been restored. It would appear that the document is the same as it was before it was taken down (can anyone spot any differences?). I will update the discrepancies outlined in Part 1 above later (many of them are no longer relevant, in light of the new EU1 form "Version 2.0 - 05/2010").

[kabuki]

THE GOVERNMENT is removing the right to work for non-EU family members of EU citizens while they await a decision on their right to residency in Ireland.

This first sentence says it all. The application isn't for the right to reside, that is given through the EU national partner. The application is an administrative formality. This is the root of the problem.

They can talk about all the sham marriages they want, but it doesn't change the law. This law also allows them to revoke a permit the government finds out that it is a sham marriage. On another note: there are more than enough sham marriages where Irish nationals are involved, and that is where changes can be made, like issuing a 1 or 2 year stamp for review before a 5 year stamp is issued.

At this rate they may be saying goodbye to lots of highly-skilled EU workers and their highly-skilled partners as I'm sure some will start leaving if they get the chance. I know my partner and I are already doing our research. It's just not worth it, at least not for us.

[ImmigrationLawyer]

[quote="koded"]I dont really understand DOJ, does it mean they dont read or research or have a good lawyer that will interprete the law for them."

I think this is correct, they obviously do not have good lawyers. It's pathetic. These provisions will need to be challenged by suing the Dept in the High Court yet AGAIN!

[kabuki]

What this is about is buying time. It will take time for this to be brought to and run through the EU court. This means, until such time, Ireland will get away with this and more Irish people will be able to find employment.

It's a load of shite. I doubt it's going to make a dent in unemployment. The issue isn't with foreign nationals working here, it's with the way business and politics are run in Ireland. They sure didn't shy away from taken foreign money/EU money during the boom, but the recession means keep all foreign nationals out and illegal prevent people from working. It's a very screwed up system.