RECENT SUCCESSFUL JUDGEMENT FROM THE HIGH COURT
VINDICATION FOR EU TREATY RIGHTS APPLICANTS
5th August 2010
Hello,
We are happy to announce a successful outcome in our case, Decsi v the Minister for Justice, Equality and Law Reform, which was heard on the 30th July last. The case involved a challenge to the Minister’s new policy to issue a stamp 3 residency permit to all applicants for a residence card pursuant to the EU Free Movement of Persons law. The new policy, introduced on the 1st July last, was highly controversial as a stamp 3 residency permit prohibits the holder from entering employment in the State. Prior to this, all such applicants were issued with a stamp 4 permit which entitled them to work. Given that the European Law expressly acknowledges and protects the right to work of all European nationals and their family members validly exercising their EU Treaty Rights, we believed this policy was a clear breach of the law and had to go under judicial review.
In late June 2010 we issued High Court proceedings to challenge the point on behalf of a Chinese client of ours who was married to a Hungarian national. Our client was at high risk of loosing her job because she was not provided with the proper stamp by the Minister. Because of the urgency involved, the case was fast tracked and given an early hearing date on the 30th July 2010. The case was heard by Mr Justice Cooke, who issued his decision on the day and found fully in favour of the applicant. He declared that her rights had been breached by the Minister’s new policy. He granted a declaration that the applicant had an entitlement to work in the State from the date of the acknowledgment by the Department of Justice of her application for a residence card. Mr Justice Cooke adjourned the case in order to prepare his full judgment and reasoning, but he granted the declaration on the afternoon of the 30th July because the applicant’s employment was in jeopardy. The Judge made it very clear in the wording of the declaration that an applicant for a residence card pursuant to the Free Movement of Persons Regulations and European Directive acquires an entitlement to take up employment from the date the valid application is acknowledged as having been received. According to the Judge, this acknowledgement is sufficient to evidence a person’s entitlement to work.
Whether or not the Department of Justice will revert to the former policy of issuing a temporary stamp 4 permit to residence card applicants remains to be seen. It is possible that the Department may adopt a position where it simply gives an acknowledgement of receipt of an application for a residence card, rather than issue any passport stamp whilst the application is pending. However, it seems to us that such a system would cause much confusion with employers as to whether or not the applicants are lawfully in employment. Perhaps the Department will have to recognise an applicant's entitlement to work and confirm this position with an employer if called upon. However, it seems to us that the most effective way forward would be to revert to the old policy of issuing temporary 6 month stamp 4 permits to all applicants in order to maintain clarity for both the applicants and the employers.
The case is featured in the Irish Times today. See http://www.irishtimes.com/newspaper/ire ... 36283.html
We will watch this area with interest, and keep you updated of any more interesting developments!
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