Post
by walrusgumble » Mon Jan 31, 2011 10:07 am
if you win your case, the usual order from a judge is that the other side will pay your lawyer's costs which could be in the region of over €20k. (you of course will never pay that on no foal no fee, simply just the €1k to cover all expenses, eg stamp duty to file, photocopying etc)
If you loose, the other side would automatically seek an order against you for their costs. Of course, where a case is of public importance, the judge may grant no order of costs, even the state themselves might not suggest same.
I think the state might fold on this one just before it goes before the judge. They doubt they want to set recorded precedent.
I can't see how they can determine that you should have lived in his country , when Metock, a case dealing with married couples (married and de facto are nearly all in the same in social views today - legally of course, its different, a bit) clearly stated that it was not neccessary. If they had actually come out and stated something like "from reviewing the documentation submitted by the applicant, we are not satisified that the couple have meet the de facto relationship criteria as per Commission Communications", then that might have been enough.
Judicial REview does not always award damages. What have you lost out on? Isn't your partner still in Ireland and ye are together? Has this effected your ability to work?
It might have been easier if ye had married, as you are on all fours with Metock. (whilst the same principles apply, until ye fall within the Irish legislation for partnership, ye fall within the de facto REg 3.2 critieria)
McCarthy aspect, to point out bluntly, the British government were basicially stating that the woman, in the words of a one time disgraced Irish politican, "had a new found interest", in her Irish nationality. She was considered British all her life and as far as the government was concerned considered herself British until recently. Interestingly, the Irish government supported the British stance.(considering its express provision on the Irish diaspora in the Constitution) Did McCarthy even have a record of holding an Irish passport until the relationship?(which, even if she did not, does not effect her being Irish), the social was the secondary, but crucial argument, in case the first was defeated.
What ever about the possibility that the ECJ find that in the fact that the Directive soley deals with actual Free movement, which sounds reasonable, I think the court might accept the argument of dual nationality and as such, one meets the criteria (Monife's parents actually did come over). If there was trouble tomorrow in Ireland, Monife's family would expect to be able to turn to the British Embassy and be treated as British , so the refusal to reconise dual nationality strictly in the context of eu free movement is nonsenical, particularily with so many cross boarder relationships.
As for you going to the ECJ, as you know, you will have to go through the Irish courts first. Expect to wait a while.