DOJ still sticking to STAMP 3 for EU1 Applicants... WHY???

[Monifé]

Hi everyone

I am dumbfounded on why the DOJ are still sticking to their policy change, of changing the temporary stamp 4 of pending applicants for EU1 to a temporary stamp 3. Should they not have the "best of the best" of legal advisors to advise them that this change is unlawful?

On the advise of my solicitor and many other reputable sources (including the EU Commission), their policy change is clearly in breach of the directive. So, I ask, why oh why are they still sticking to it? When it could cause serious consequences to their already tarnished reputation and serious expense to taxpayers money.

[quote]New immigration policy will breach EU law
Senior Solicitor Hilkka Becker has written to the Minister for Justice and Law Reform, Dermot Ahern, to point out that a proposed change to administrative procedures by the Irish Naturalisation and Immigration Service (INIS) would result in Ireland breaching EU law. According to a notice on the INIS website, the Government intends, from June 1, to not allow the non-EU citizen family members of EU citizens to work or set up a business while their application for a residence card is being processed. Currently, this routinely takes six months.

Hilkka pointed out that this would breach EU Directive 2004/38/EC which states: “irrespective of nationality, the family members of a Union citizen who have the right of residence in a Member State shall be entitled to take up employment or self-employment thereâ€

[sarahfancy]

Hi Monifé,

Anything happening here? This will most definitely affect me too as a non-EU spouse of an EU person. I have the job offer and am not sure when I can start!

I also wrote the European commission and signpost.ie and got this confusing reply:

I wish to refer you to EU Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Under Article 23 of the above-mentioned Directive EU family members, irrespective of their
nationality, are entitled to take up employment or self-employment in the host Member State. It does not matter whether the EU national (your husband in this case) moves to work, study or just reside there, as their family members can start their economic activity with the same paperwork as nationals.

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 citizenâ€

[xxxtieee]

Man..!!!! I guess these guys take really advanced courses in framing complex sentences.... two interesting pointers come through.

1. Residence card should be issued "no later than six months from the
date on which they submit the application." Something which the inis guys are happily ignoring.
2. The listed documents "may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof. " This is what I understand - as long as you can prove that you are legally married to a European citizen, you can exercise your rights immediately. As long as you have some documentary evidence that you are married to a European citizen - you can safely exercise the rights given in the directive.

Unfortunately, we can't exercise any rights until the Irish government is understands and accepts what this means.

Have you forwarded this to Inis?

[sarahfancy]

Man..!!!! I guess these guys take really advanced courses in framing complex sentences.... two interesting pointers come through.

1. Residence card should be issued "no later than six months from the
date on which they submit the application." Something which the inis guys are happily ignoring.
2. The listed documents "may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof. " This is what I understand - as long as you can prove that you are legally married to a European citizen, you can exercise your rights immediately. As long as you have some documentary evidence that you are married to a European citizen - you can safely exercise the rights given in the directive.

Unfortunately, we can't exercise any rights until the Irish government is understands and accepts what this means.

Have you forwarded this to Inis?

Hi xxxtieee,

To what e-mail address or address should I send it to?

Ben basically told me I should work immediately. But which takes precedence, EU law or Irish law? Of course I have evidence of my marriage, and here in Germany, I have a permanent residence card that never has to be renewed. But we in a holding pattern here as to when we can move, because I am afraid I can't work immediately. But I have to apply and stay, basically, until it comes through.

Cheers,
Sarah

[xxxtieee]

Hi Sarah,

I agree with Ben that - by the EU Directive - you are entitled to work immediately. From the letter, it looks like it will even stand a legal challenge from the Irish government. So YOU ARE ENTITLED TO WORK.

However, you have the following hurdle: When employers look at your application, most of them would ask for a confirmation of some sort from the Irish government. Most of them ask your residency status and stamp and decide if you are eligible. However, if you can get your employer to agree with what is stated in the letter from EU - I think you don't have to worry about anything.

If I were you, I would do the following:(more of the options I can think of)

1. I would meet an immigration lawyer and get his opinion on the letter. this gives some more validity to the claim that we are entitled to work.
2. Just to try it: Accompanied by my EU spouse, my Marriage certificate and this letter from EU (the original), I would go to my immigration office and try to get a formal statement from them. Or try to get a stamp 4.
3. I would forward a copy of this letter to every address available in the inis website. Also to any immigration / EU grievance tribunals - if any. I forget their names now. (this will not give any immediate result)
4. I would take this letter to the prospective employer and try to convince him/her that I am entitled to work and would take personal responsibility for anything arising from it.

However, if none of these work out immediately:

5. If you are eligible for the green card - just apply for it. The green Card applications are dealt with in about 2 weeks.

What would be most important to me is to make sure that I don't lose that job offer.

I can understand how you feel..

Good luck.. do let us know how it turned out...

[Monifé]

Hi Sarah

We have yet to receive any temporary stamp for my partner so I am not sure.

My firm of solicitors are currently in the process of taking the Department to court over this issue (not through us, someone who applied on 31 May was given stamp 3). Hopefully it will cause a precedence and not just be settled out of court.

I am with xxxtie and Ben on this one. You can work straight away, nothing illegal about it. Just get a copy of the directive, that letter you have, documentary evidence, maybe solicitors letter to same effect and go to your employer armed with that.

You can also complain to the EU commission which Ben and I have also done.

Good luck

[Ben]

My firm of solicitors are currently in the process of taking the Department to court over this issue (not through us, someone who applied on 31 May was given stamp 3). Hopefully it will cause a precedence and not just be settled out of court.

Only problem with that is, any precedent set in that case might be merely that those issued with Stamp 3 prior to 1st June were so issued incorrectly, since 1st June was the advertised date by the DoJ.

[sarahfancy]

Hi Sarah

We have yet to receive any temporary stamp for my partner so I am not sure.

My firm of solicitors are currently in the process of taking the Department to court over this issue (not through us, someone who applied on 31 May was given stamp 3). Hopefully it will cause a precedence and not just be settled out of court.

I am with xxxtie and Ben on this one. You can work straight away, nothing illegal about it. Just get a copy of the directive, that letter you have, documentary evidence, maybe solicitors letter to same effect and go to your employer armed with that.

You can also complain to the EU commission which Ben and I have also done.

Good luck

Ok, I sent the signed contract off either way today. I also wrote an immigration solicitor in Galway with the information and asked their opinion, etc. The letter I have is only via e-mail. Does that still "count"?

Where should I send a complain to the EU commission? I already asked at solvit?

Thanks!
Sarah

[doesnotcompute]

You might all be interested to know the following:

Leave granted to challenge Govt. Policy to issue Stamp 3 to family members of EU citizens
Leave has been granted by the High Court to challenge Government policy in relation to administrative procedures regarding the ability of non-EU citizen family members of EU citizens to work or set up a business while their application for a residence card is being processed. The changes to the administrative procedures mean that non-EU spouses are currently being issued Stamp 3 permits which did not grant access to the labour market.

Previous News Bulletins have mentioned this change to the administrative procedures by the Irish Naturalisation and Immigration Service, and that the ICI felt these changes represent a breach of EU Directive 2004/38/EC and are contrary to established case law. The ICI called on the Minister for Justice and Law Reform to review the arrangements. Leave was granted to an EU citizen and their non-EU citizen spouse by Judge Clarke to challenge the Minister for Justice and Law Reform on the new policy to issue stamp 3 permits to applicants for a residence card last week. Brophy Solicitors represent the applicants in this case. For more information, please contact Senior Solicitor Catherine Cosgrave – catherine@immigrantcouncil.ie