Problems with Directive 2004/38/EC implementation in Ireland

[ImmigrationLawyer]

I don't know if this will go to EU Court. I think the Irish High Court will sort it out.

[kabuki]

I don't know if this will go to EU Court. I think the Irish High Court will sort it out.

Well, lets hope so. How long will that take. There have to be many families that will be affected by this. Who makes these law changes in Ireland? Are they really that incompetent? I just don't get it.

[Ben]

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'm not sure that's correct, Monifé.

Putting aside for a moment the compatibility of GNIB registration pre Residence Card issuance and thinking purely logistically - if a person has already been issued with Stamp 4, valid for six months, why would he present himself at the GNIB before the temporary Stamp 4's expiry in order to have it chanced to Stamp 3? There is no logic in that.

Until the DoJ withdraws this intention to issue Stamp 3, my suggestion to any non-EEA national family member (§ 2(2)) who applies for a Residence Card is to proceed as follows:

• Remind the DoJ on submission of the EU1 application that the DoJ is obligated under § 10(1) of Directive 2004/38/EC to issue a certificate of application for the Residence Card immediately.
• Ignore any request by the DoJ to report to the GNIB to obtain a Stamp 3 endorsement.

[Monifé]

Until the DoJ withdraws this intention to issue Stamp 3, my suggestion to any non-EEA national family member (§ 2(2)) who applies for a Residence Card is to proceed as follows:

• Remind the DoJ on submission of the EU1 application that the DoJ is obligated under § 10(1) of Directive 2004/38/EC to issue a certificate of application for the Residence Card immediately.
• Ignore any request by the DoJ to report to the GNIB to obtain a Stamp 3 endorsement.

If you ignore the request to report to GNIB for the stamp 3 endorsement, doesn't that mean the Non-EU will have no registration card either, so if stopped by Gardaí or GNIB, he would have no ID/Visa to prove he is here lawfully?

And also, if one were not to report to GNIB, can they still work? Although practically impossible as most employers want to see some sort of proof of entitlement to work..

[Ben]

If you ignore the request to report to GNIB for the stamp 3 endorsement, doesn't that mean the Non-EU will have no registration card either, so if stopped by Gardaí or GNIB, he would have no ID/Visa to prove he is here lawfully?

And also, if one were not to report to GNIB, can they still work? Although practically impossible as most employers want to see some sort of proof of entitlement to work..

The entitlement to reside and to work in Ireland is derived from the family member's relationship with an EEA national who is exercising a Treaty right in Ireland. This entitlement is not granted by the Irish government and it is not dependant on possession of any document issued by the Irish government.

The non-EEA national family member of an EEA national is required to apply for a "Residence card of a family member of a Union citizen" if his period of residence is to exceed three months. Once he has done this (by submission of form EU1), he has acted lawfully.

The only time he should have to report to the GNIB is to collect his Residence Card, within six months of submitting form EU1.

For a family member (§ 2(2)), the DoJ cannot cause to be endorsed Stamp 3 conditions in his passport, nor can they cause to be issued a Certificate of Registration bearing Stamp 3.

[walrusgumble]

one wonders then how the state can get away with making a couple wait 6 - 9 months for a decision, whether approval or refusal. surely they can't allow this to happen when its crystal crystal clear that the marriage is genuine eg. where the non eu spouse had a stamp 1 or stamp 4 in their own right, or when they themselves are eu citizens (but can't for whatever reason comply with article 7 - yes i know there is treaty rights themselves) or what about when the couple were married and lived together (legally) in another EU state or in fact as reality shows somewhere like the us, australia etc.

must say this is a joke and an embarrassment

Why can't they follow the suggestions of the judge from the recent case (you know the one where a person sued for delay in giving a decision - the recent one) where the judge suggested where an application is made for the first time it must take six months but where the minister is re-considering a refusal is can't take too long - point here, the judge said where there is suspicion of sham marriage but there is no conclusive evidence, it can't give the minister excuse of delaying. give the person status and if its found later that the marriage is dodgy then he can consider revoking the residency on basis of the artilce provided in the directive.

I, as many will note had huge problems with the metock case, one notes from the singh high court decision. not on the principle of freemovement or how irrelevance of legal status but on the reality that the courts did not allow the ministers of each country really do something about the out and out shams or more to the point, the drafters of the legislation in brussels. Oh well, thats the price of eu law. it works just the same way if an irish person Despite this the law is the law and the minister is taking the piss here

Regardless, whether we like it or not there are feck all jobs about from anyone. this smells of breach of law really bad on many many fronts

[Obie]

Paragraph 28 of this judgement clearly states that the right of the family member exist as a result of the familial relationship, and not following the insuance of a residence permit.

The government and the Department of Justice have clearly lost the plot.

To say this is shambolic, is an understatement.

What a disgraceful and scandalous act.

[kabuki]

Regardless, whether we like it or not there are feck all jobs about from anyone. this smells of breach of law really bad on many many fronts

Have they done their research at all on unemployment? Bottom line, this is wrong and illegal, no matter the reason. However, as for their reason, I know many couples who have now moved to the non-EU citizen's country due to unemployment. Not issuing a stamp 4 isn't going to change that. I know of some companies who will make preferences to the Irish and some who will go for the better candidate. That said, it doesn't matter in the case. Not issuing a stamp 4 is against EU regulations. If they want to be part of the EU, then they need to abide by them at all times, not just when it's convenient.

[Ben]

Not issuing a stamp 4 is against EU regulations.

Not issuing temporary Stamp 4 to family members is not against EU regulations, but issuing temporary Stamp 3 is.

[Monifé]

Not issuing temporary Stamp 4 to family members is not against EU regulations, but issuing temporary Stamp 3 is.

Ben, if DOJ suddenly obtain some level of intelligence and competence and decide to not issue any stamp but state that the NON-EU family member is allowed to reside in Ireland pending the outcome of their application on the basis of being a family member of an EU Citizen, what proof can be obtained to prove to a prospective employer that the NON-EU family member is entitled to work as stated in the Directive?

[koded]

I will like to ask this question about the EU directive 2004 because I was just reading Ben's post which i think he made a good point there and I have rethink abou the EU Directive 2004.
Is there any provision in the EU Directive that state that family member of EU citizen should obtain a work permit as soon as his or her spouse is exercising the EU Treaty rights?
Also, in the directive is it written that for the first period of 3 months, the family member of EU citizen does not have right to work?
If the answers are No what is all these about stamp 3?

[kabuki]

Not issuing a stamp 4 is against EU regulations.

Not issuing temporary Stamp 4 to family members is not against EU regulations, but issuing temporary Stamp 3 is.

My apologies. I meant by not issuing the Stamp 4 and issuing the stamp 3 instead, taking away the persons legal right to work is against EU regulation.

[walrusgumble]

Regardless, whether we like it or not there are feck all jobs about from anyone. this smells of breach of law really bad on many many fronts

Have they done their research at all on unemployment? Bottom line, this is wrong and illegal, no matter the reason. However, as for their reason, I know many couples who have now moved to the non-EU citizen's country due to unemployment. Not issuing a stamp 4 isn't going to change that. I know of some companies who will make preferences to the Irish and some who will go for the better candidate. That said, it doesn't matter in the case. Not issuing a stamp 4 is against EU regulations. If they want to be part of the EU, then they need to abide by them at all times, not just when it's convenient.

that particular comment was a throw away remark, in the sense of why in gods name would they want to come here, hardly the weather. the remark was not to be taken serious. However, yes you are right, its not the point eu law allows them to reside here.

with regard to their research, yes actually research regarding social welfare, unemployment and even the effects on immigrants has been taken, you would notice this in deportation cases involving fathers of citizen children. some recent ones from late 2009. but again, as you say, it ain't the point it still does not take away from the fact that what they are doing is illegal, haven't they learned from metock.?

the worse thing about this is, i do not for one mili second believe that the lawyers in the department are ignorant to the eu laws and recent case law, but this is more a poltical issue and ireland thinks that by putting such defiant action (which if we look at tory england for example) might catch on elsewhere and force those in Brussels to redraft the 2004 directive. why can't they just have the balls and at least campaign publically with other countries (without effecting the day to day running of the legislation and people's rights as they are now) and raise their concerns regarding a trend they believe is dodgy. if they then lose they should put up and shut up and comply. it would be better than doing what they are doing now and risks public humilation and hassle from the eu commissioner and more tax payers money going down the drain

[IrishTom]

If they want to be part of the EU, then they need to abide by them at all times, not just when it's convenient.

The French, Germans and Italians break EU directives on a number of issues. According to EU treaty rules, it is forbidden to bail out eurozone countries(Greece). Then, remember the arms deal the French carried out with the Russians, which went against the EU weapons code. This is off the top of my head from the last two or three months. I understand your anger and frustration, but to call for Ireland to be kicked out of the EU for, on the grand scheme of things, a rather trivial matter, is just plain silly.

[Obie]

I strangely agree fully with your take walrusgumble.

Perhaps you should consider applying for a position at the department as an adviser.

In regard to Tom.

You are obviously ignorant, and possibly illiterate about the EU treaty and the measures adapted to give it effect.

EU law , far from trivial matter on the great scheme of things, is very serious matter.

Breaching EU law, especially one or more of the Four Freedom, which includes freedom of movement, is absolutely important.

How can the internal market work effectively if EU nationals and their non-EU family members are restricted from moving within the community.

The scope of EU treaty and other secondary legislation adopted to give it effect, far exceed what your narrow minded lovely believe would let you to believe.

[kabuki]

Is there any provision in the EU Directive that state that family member of EU citizen should obtain a work permit as soon as his or her spouse is exercising the EU Treaty rights?

No. It states that a residence permit must be obtain, not a work permit as the non-EEA national already has the right to work based on his/her EEA spouse/registered partner exercising his/her treaty rights. While the EEA national does not need to register with immigration, the non-EEA national does.

Also, in the directive is it written that for the first period of 3 months, the family member of EU citizen does not have right to work?

No. The right to work is conferred through the EEA national exercising his/her treaty rights. I don't know any other country that requires you to wait 3 month before applying (someone correct me if I'm wrong). Other countries requests that you register asap.

If the answers are No what is all these about stamp 3?

Recently, INIS have made a change to the EU1 application process. Previously, a stamp 4 was issued to the non-EEA national for 6 months (the time INIS can take to review the application). From June 1, INIS will now issue a non-EEA national to obtain a Stamp 3 which will prevent him/her from working. This is against EU law as the non-EEA spouse/registered partner of an EEA national has the right to work through his/her partner exercising his/her treaty rights. By either issuing no stamp or a stamp 3, the non-EEA national will not be able to work.

Hope this helps.

[kabuki]

If they want to be part of the EU, then they need to abide by them at all times, not just when it's convenient.

The French, Germans and Italians break EU directives on a number of issues. According to EU treaty rules, it is forbidden to bail out eurozone countries(Greece). Then, remember the arms deal the French carried out with the Russians, which went against the EU weapons code. This is off the top of my head from the last two or three months. I understand your anger and frustration, but to call for Ireland to be kicked out of the EU for, on the grand scheme of things, a rather trivial matter, is just plain silly.

I'm not saying the Irish are the only ones, not even close. It will always happen. Unfortunately, it's politics. You clearly have mistaken my remark. I was not calling for them to be kicked out. I was stating that sometimes the politicians/legislators here, through their actions, make it seem as if they don't want to be there, or only be there when it's convenient for them. That is all, and I'll leave at that.

[koded]

@ kabuki thanks, I understand. I am only just wondering why DOJ should be making this as an issue when the law is very clear.
I can understand that most of their implementation of the EU Directive 2004/38 is totally unlawful.
first the issuance of 1 months visa at the port of entry to family member of EU citizen when they are allowed to stay for a period of 3 months.
And in the stamp from the port of Entry it is written that work is not permitted.
Second, the issuance of stamp 3.
And so on.

[IrishTom]

[quote="kabuki"]
While the EEA national does not need to register with immigration, the non-EEA national does.[quote]

Wrong.

Citizens from the new accession states need a work permit to gain employment in Germany and Austria.

[kabuki]

@ kabuki thanks, I understand. I am only just wondering why DOJ should be making this as an issue when the law is very clear.
I can understand that most of their implementation of the EU Directive 2004/38 is totally unlawful.
first the issuance of 1 months visa at the port of entry to family member of EU citizen when they are allowed to stay for a period of 3 months.
And in the stamp from the port of Entry it is written that work is not permitted.
Second, the issuance of stamp 3.
And so on.

Good question. I've just started to shake my head, reply to posts on here and work on moving. I'm so disappointed in the system here and their treatment of human beings from their own country and all around the world in regards to immigration. All I can do is shake my head.

[kabuki]

While the EEA national does not need to register with immigration, the non-EEA national does.

Wrong.

Citizens from the new accession states need a work permit to gain employment in Germany and Austria.

If you want to get that technical, then yes, there are countries who have additional requirements (work permit, a year of work before non-EEA spouse can join them and so on) for the new members as of 2007. However, the question was in regard to 2004.

[walrusgumble]

I strangely agree fully with your take walrusgumble.

Perhaps you should consider applying for a position at the department as an adviser.

In regard to Tom.

You are obviously ignorant, and possibly illiterate about the EU treaty and the measures adapted to give it effect.

EU law , far from trivial matter on the great scheme of things, is very serious matter.

Breaching EU law, especially one or more of the Four Freedom, which includes freedom of movement, is absolutely important.

How can the internal market work effectively if EU nationals and their non-EU family members are restricted from moving within the community.

The scope of EU treaty and other secondary legislation adopted to give it effect, far exceed what your narrow minded lovely believe would let you to believe.

ha there are plenty of good (and better people) out there to take up this. anyway, i am on the centre left so i don't want to leave justice department after 40 years service felling ultra conservative and right wing lol

as for the free movements yes. it is CRUCIAL. its why the eu was allowed to develop as oppose to the inter governmental approcah in the late 1960's-1970's. our treaties from 1986 show that its not always easy to address everything at once. rome was not built in one day. the eu is ever evolving. becaue of the nature of life, new rights and new social demands, the eu had to in order to be relevant come out with, at many times, revoluntionary programmes. the demands of people from their own governments lead the eu to move on from simple (can't really say that) economic aims and ensurance to avoid another world war into areas effecting welfare, education etc.

getting landed in the ecj over a breach of the four fundamental freedoms is no laughing matter. fines are huge and it will give bad faith amongst other nations when they sit around their tables for negotiations over, eg argiculture reliefs etc. I suggest anyone to read John Walsh's book on Dr Patrick Hillery (former president of Ireland and Ireland's First Commissioner and first important social welfare commissioner for europe) it gives you an insight how Ireland and many other others did financial package deals for other matters (eg argiculture etc) in order to vote for something such as legislation to effect eg workers rights or recognition of qualifications to other eu citizens. when (and I say when) we go to Brussels with hand in cap asking for a shelling for the babi, we don't want an embarrassing reminder of a particular court case over our shoulders. Whilst the Brits and Danish for natural, genuine and even honest reasons might sympathise, our sugar daddys the germans (god bless them, surely they no longer have to feel remorseful for all the worlds problems during a certain decade) or the french might not see things our way on this issue. look at the HUGE rows between france and uk in the 1970-1980's before the ecj, you telling me that everything went swimmingly on other matters unconnected at negotiation tables?

Ireland have brought this issue to the concern of Brussels. I believe it is a possible genuine concern. Britian have had similar concerns, but now is the time to met it head on and seek a reform of the laws (which bear in mind, you have to be in compliance with general eu law, so even an agreed draft of the directive might go against the treaty) if they fail, drop the matter. the state can always review these cases should facts and proof crop up. in many cases, they do, many spouses for whatever reason have gone to the department to get one over their spouses.

[IrishTom]

In regard to Tom.

You are obviously ignorant, and possibly illiterate about the EU treaty and the measures adapted to give it effect.

You are entitled to your opinion.

EU law , far from trivial matter on the great scheme of things, is very serious matter.

Look at the bigger picture. Which do you think is more of a concern in Brussels at present, the Greek bailout, the Franco-Russia weapon agreement, or Dermo Ahern acting the muppet?

Breaching EU law, especially one or more of the Four Freedom, which includes freedom of movement, is absolutely important.

An unemployed accession state citizen in Ireland can apply for the dole. An unemployed accession state citizen in Germany is illegal after three months.

How can the internal market work effectively if EU nationals and their non-EU family members are restricted from moving within the community.

Ask the Germans and the Austrians. Their respective economies seem to be doing ok.

[koded]

IrishTom Wrote

An unemployed accession state citizen in Ireland can apply for the dole. An unemployed accession state citizen in Germany is illegal after three months.

I dont think there are any member of EU that will be illegal in any another EU country looking at the current EU directives. Perhaps, somebody can quote me wrong. I said this because as far as I know there is no entry or exit stamp to prove when the Eu citizen enter the state.

[Ben]

Not issuing temporary Stamp 4 to family members is not against EU regulations, but issuing temporary Stamp 3 is.

Ben, if DOJ suddenly obtain some level of intelligence and competence and decide to not issue any stamp but state that the NON-EU family member is allowed to reside in Ireland pending the outcome of their application on the basis of being a family member of an EU Citizen, what proof can be obtained to prove to a prospective employer that the NON-EU family member is entitled to work as stated in the Directive?

Until a Residence Card is issued, other means of proof of entitlement to reside and work in Ireland should be submitted to a (prospective) employer. This should be documents to confirm that the person in question is a family member of an EEA national, together with documents to confirm that that EEA national is resident in Ireland in conformity with the Directive.

Is there any provision in the EU Directive that state that family member of EU citizen should obtain a work permit as soon as his or her spouse is exercising the EU Treaty rights?

No. It states that a residence permit must be obtain, not a work permit as the non-EEA national already has the right to work based on his/her EEA spouse/registered partner exercising his/her treaty rights. While the EEA national does not need to register with immigration, the non-EEA national does.

If I may exercise my pedantry.. It's quite crucial to point out here that the name of the document is "Residence card of a family member of a Union citizen" - and nothing else. It's not a residence permit, since no permission is required (from any authority) for a family member to exercise his or her right to reside and to work. In the United Kingdom, applications for a "Residence card of a family member of a Union citizen" are entirely optional.