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madrogada77 wrote:I am a South African married to an EU national (British) living in Ireland since 2006 on a stamp 4 with my two kids also on Stamp 4. My husband and I have been living apart since 2009 but were still friends.
Now, he is moving back to South Africa to his new girlfriend, probably in the next 3 months and divorcing me. In SAfrica, my husband can divorce me in 6 weeks. Is there any way that I can stay here legally after he divorces me?
I think I need to have been living with my husband exercising treaty rights for three years to qualify staying here on my own (that I do have) but.. I read that I need to be divorced to qualify for this (not 100% sure as it doesn’t make sense) What I need to know is when can I apply to stay here legally on my own (without my needing my husband)? Do I need to be divorced first? During the time that I apply, will I be living here illegally?
Thank you.
I presume the children are Uk or Irish nationals? If so you'll be able to rely on the Zambrano decision.madrogada77 wrote:I am a South African married to an EU national (British) living in Ireland since 2006 on a stamp 4 with my two kids also on Stamp 4. My husband and I have been living apart since 2009 but were still friends.
Now, he is moving back to South Africa to his new girlfriend, probably in the next 3 months and divorcing me. In SAfrica, my husband can divorce me in 6 weeks. Is there any way that I can stay here legally after he divorces me?
I think I need to have been living with my husband exercising treaty rights for three years to qualify staying here on my own (that I do have) but.. I read that I need to be divorced to qualify for this (not 100% sure as it doesn’t make sense) What I need to know is when can I apply to stay here legally on my own (without my needing my husband)? Do I need to be divorced first? During the time that I apply, will I be living here illegally?
Thank you.
The kids are South African so I'm afraid the Zambrano decision will not apply in our case I don't have 5 years as yet, we arrived in September 2006 but only have the Stamp4 since April 2007 (due to the Metock case) so only legally resident here for 5 years in April 2012. Because of this PR and Citizenship applications are out of the question, unfortunatelyMuttsnuts wrote:I presume the children are Uk or Irish nationals? If so you'll be able to rely on the Zambrano decision.madrogada77 wrote:I am a South African married to an EU national (British) living in Ireland since 2006 on a stamp 4 with my two kids also on Stamp 4. My husband and I have been living apart since 2009 but were still friends.
Now, he is moving back to South Africa to his new girlfriend, probably in the next 3 months and divorcing me. In SAfrica, my husband can divorce me in 6 weeks. Is there any way that I can stay here legally after he divorces me?
I think I need to have been living with my husband exercising treaty rights for three years to qualify staying here on my own (that I do have) but.. I read that I need to be divorced to qualify for this (not 100% sure as it doesn’t make sense) What I need to know is when can I apply to stay here legally on my own (without my needing my husband)? Do I need to be divorced first? During the time that I apply, will I be living here illegally?
Thank you.
However, your right to remain is not abolished purely on account of separation or divorce. Under Directive 2004/38 you can retain your right of residence in your own capacity if the marriage has subsisted for three years and if you are a worker or have sufficient resources.
You can also apply for Irish Citizenship presuming you have 5 years of stamps on your passport. Another alternative is to apply for permanent residency under Article 16.
Long story short, you shouldn't have any problem remaining in the State. If you don't know how to resolve any of the above, see a solicitor.
In September 2011 you can make a PR application IF you can show i) that you are married since September 2006 and ii) that you and your husband both lived together here since then and iii) you can show that your husband was exercising EU Treaty Rights, i.e. was working or in full time study or had sufficient funds and health insurance. You will need to show this for the entire time so lots of documentation required and this presumes your husband would be willing to remain until then. It doesn't matter if you do not have the 5 years stamps under EU Treaty Rights in your passport as long as you can show the above.madrogada77 wrote: The kids are South African so I'm afraid the Zambrano decision will not apply in our case :( I don't have 5 years as yet, we arrived in September 2006 but only have the Stamp4 since April 2007 (due to the Metock case) so only legally resident here for 5 years in April 2012. Because of this PR and Citizenship applications are out of the question, unfortunately :(
In regards to the right of residence in your own capacity if the marriage has subsisted for three years and if you are a worker or have sufficient resources..... do you have a link that I can look up stating this? I am quite certain that you have to be divorced for this to apply in which case I'm in serious trouble... :( I work but definitely can't afford a solicitor. :(:(:(
Divorce in Ireland is far from ASAP as far as I know.Muttsnuts wrote:Otherwise, you will have to get your husband to do you a favour and get divorced ASAP.
That is a pretty strong statement. Not sure if it is true. Article 13 certainly requires divorce but there may well be relevant case law.Muttsnuts wrote:You're correct in saying that you can only avail of a right to remain in your own right if your husband divorces you. See Article 13 of Directive 2004/38 EC.
Not sure what you are planning to do, so it is not clear if it is essential.madrogada77 wrote:Healthcare is the issue.. we were never asked for that before and never bothered. Do you know if that is essential?
What I said above refers to where the EU Citizen leaves the EU,i.e. back to S Africa. There are a couple of possible scenarios in this matter:Directive/2004/38/EC wrote:Divorce in Ireland is far from ASAP as far as I know.Muttsnuts wrote:Otherwise, you will have to get your husband to do you a favour and get divorced ASAP.
That is a pretty strong statement. Not sure if it is true. Article 13 certainly requires divorce but there may well be relevant case law.Muttsnuts wrote:You're correct in saying that you can only avail of a right to remain in your own right if your husband divorces you. See Article 13 of Directive 2004/38 EC.
I was hoping to get PR in Ireland after getting divorced so that I can at least stay until my daughter finishes school in June next year. Then getting married again and moving to the UK. I am trying to avoid going to SAfrica to get things done. It seems inevitable.Directive/2004/38/EC wrote:Not sure what you are planning to do, so it is not clear if it is essential.madrogada77 wrote:Healthcare is the issue.. we were never asked for that before and never bothered. Do you know if that is essential?
My husband won't stay later than July I'm afraid He is not prepared to compromise on that.Muttsnuts wrote:What I said above refers to where the EU Citizen leaves the EU,i.e. back to S Africa. There are a couple of possible scenarios in this matter:Directive/2004/38/EC wrote:Divorce in Ireland is far from ASAP as far as I know.Muttsnuts wrote:Otherwise, you will have to get your husband to do you a favour and get divorced ASAP.
That is a pretty strong statement. Not sure if it is true. Article 13 certainly requires divorce but there may well be relevant case law.Muttsnuts wrote:You're correct in saying that you can only avail of a right to remain in your own right if your husband divorces you. See Article 13 of Directive 2004/38 EC.
i) Couple separates but UK Husband remains in Ireland with no divorce. In this case there is a subsisting marriage and the OP should be able to continue with EU Treaty rights status. This would be made easier with the cooperation of the husband.
ii) Couple Separates and husband leaves Ireland. In this case there is no case law I have ever seen that suggests that the OP would be able to remain. Article 13 does not apply in such a situation as there is no divorce. The Department will simply say that the UK Husband is no longer exercising EU Treaty rights.
iii) Divorce occurs either in Ireland or S Africa. There is no longer a marriage and the OP would be entitled to rely on Article 13 of 2004/38.
Divorce in Ireland is a very slow process but the OP said that he can get divorced in S Africa in 6 weeks. There is the question of whether that divorce would be recognised in Ireland but that's for somebody who knows more about family law than me.
interpretation of what a subsisiting marriage may not be correct. In the UK case of GA ("Subsisting" marriage) Ghana * [2006] UKAIT 00046 it was decided that a subsisting marriage requirement means more than just legally subsisting, the marriage has to be an ongoing, ‘live’ oneMuttsnuts wrote:What I said above refers to where the EU Citizen leaves the EU,i.e. back to S Africa. There are a couple of possible scenarios in this matter:Directive/2004/38/EC wrote:Divorce in Ireland is far from ASAP as far as I know.Muttsnuts wrote:Otherwise, you will have to get your husband to do you a favour and get divorced ASAP.
That is a pretty strong statement. Not sure if it is true. Article 13 certainly requires divorce but there may well be relevant case law.Muttsnuts wrote:You're correct in saying that you can only avail of a right to remain in your own right if your husband divorces you. See Article 13 of Directive 2004/38 EC.
i) Couple separates but UK Husband remains in Ireland with no divorce. In this case there is a subsisting marriage and the OP should be able to continue with EU Treaty rights status. This would be made easier with the cooperation of the husband.
ii) Couple Separates and husband leaves Ireland. In this case there is no case law I have ever seen that suggests that the OP would be able to remain. Article 13 does not apply in such a situation as there is no divorce. The Department will simply say that the UK Husband is no longer exercising EU Treaty rights.
iii) Divorce occurs either in Ireland or S Africa. There is no longer a marriage and the OP would be entitled to rely on Article 13 of 2004/38.
Divorce in Ireland is a very slow process but the OP said that he can get divorced in S Africa in 6 weeks. There is the question of whether that divorce would be recognised in Ireland but that's for somebody who knows more about family law than me.
Sorry, I would have cut out previous quotes but I don't seem to able to do so.walrusgumble wrote:interpretation of what a subsisiting marriage may not be correct. In the UK case of GA ("Subsisting" marriage) Ghana * [2006] UKAIT 00046 it was decided that a subsisting marriage requirement means more than just legally subsisting, the marriage has to be an ongoing, ‘live’ oneMuttsnuts wrote:What I said above refers to where the EU Citizen leaves the EU,i.e. back to S Africa. There are a couple of possible scenarios in this matter:Directive/2004/38/EC wrote:Divorce in Ireland is far from ASAP as far as I know.Muttsnuts wrote:Otherwise, you will have to get your husband to do you a favour and get divorced ASAP.
That is a pretty strong statement. Not sure if it is true. Article 13 certainly requires divorce but there may well be relevant case law.Muttsnuts wrote:You're correct in saying that you can only avail of a right to remain in your own right if your husband divorces you. See Article 13 of Directive 2004/38 EC.
i) Couple separates but UK Husband remains in Ireland with no divorce. In this case there is a subsisting marriage and the OP should be able to continue with EU Treaty rights status. This would be made easier with the cooperation of the husband.
ii) Couple Separates and husband leaves Ireland. In this case there is no case law I have ever seen that suggests that the OP would be able to remain. Article 13 does not apply in such a situation as there is no divorce. The Department will simply say that the UK Husband is no longer exercising EU Treaty rights.
iii) Divorce occurs either in Ireland or S Africa. There is no longer a marriage and the OP would be entitled to rely on Article 13 of 2004/38.
Divorce in Ireland is a very slow process but the OP said that he can get divorced in S Africa in 6 weeks. There is the question of whether that divorce would be recognised in Ireland but that's for somebody who knows more about family law than me.
http://www.bailii.org/uk/cases/UKIAT/2006/00046.html
http://freemovement.wordpress.com/2007/ ... d-appeals/
http://www.immigrationboards.com/viewto ... 9e127f5640
http://www.newzimbabwe.com/pages/immigr ... 14286.html
A marriage is not subsisting when a decision has been made to separate and the couple no longer live as man and wife and now have new relationships.
However, until there is a divorce, there seems to be no obligation to disclose this fact. I don't believe that the op could say that as of today, the marriage is subsisting.
In light of Ireland's lengthy requirement for separation (4 years) possibly longest in Europe, it makes the 3 year requirement a bit redundant in many cases in that it assumes that all EU states allow for quick divorces. In addition, it can take even up to 1 year in some court districts to even get the case finished.
However, the op should note that all may not be loss. Even if not divorced, but spearated, provided that at least 3 years of relationship (even whilst in SA) and marriage can be proven , and that you are stilling working, I highely doubt that you will be asked to leave. It may however, be granted on domestic basis as oppose to EU law. But who cares, its still stamp 4, and it does not effect one's
On what basis is there the requirement to inform the DOJ of a separation? It is certainly not part of the Directive directly. Where is this requirement spelled out and in exactly what detail?Muttsnuts wrote:There is an obligation on the foreign national to inform the Department of any change in circumstance and it would seem clear that a separation for a person here based on marriage would fall under this.
The requirement for full and frank disclosure comes from the 2006 regulations transposing the directive into Irish law, which makes it an offence to give false or misleading information in an application (Section 25, SI 656 / 2006). Therefore when the OP is applying for her upcoming renewal, she must inform the INIS of the fact that the husband has left.Directive/2004/38/EC wrote:On what basis is there the requirement to inform the DOJ of a separation? It is certainly not part of the Directive directly. Where is this requirement spelled out and in exactly what detail?Muttsnuts wrote:There is an obligation on the foreign national to inform the Department of any change in circumstance and it would seem clear that a separation for a person here based on marriage would fall under this.
An Example: if I separate from my wife, do my own thing for a month, and then we get back together again, then I have an obligation to notify DOJ? Don't think so!
The relevance of British law in Ireland, is a very weak argument. British law is regularly quoted, adopted, applied and persuasive when dealing with Irish law, especially Irish Immigration Law. What do you base your argument that Ireland is different in light of Article 41 of Bunreacht ná hÉireann? The Constitution provides for divorce. THe Courts recongise that a family unit still remain where there are children, even if the parents divorce.Muttsnuts wrote:Sorry, I would have cut out previous quotes but I don't seem to able to do so.walrusgumble wrote:interpretation of what a subsisiting marriage may not be correct. In the UK case of GA ("Subsisting" marriage) Ghana * [2006] UKAIT 00046 it was decided that a subsisting marriage requirement means more than just legally subsisting, the marriage has to be an ongoing, ‘live’ oneMuttsnuts wrote:What I said above refers to where the EU Citizen leaves the EU,i.e. back to S Africa. There are a couple of possible scenarios in this matter:Directive/2004/38/EC wrote: Divorce in Ireland is far from ASAP as far as I know.
That is a pretty strong statement. Not sure if it is true. Article 13 certainly requires divorce but there may well be relevant case law.
i) Couple separates but UK Husband remains in Ireland with no divorce. In this case there is a subsisting marriage and the OP should be able to continue with EU Treaty rights status. This would be made easier with the cooperation of the husband.
ii) Couple Separates and husband leaves Ireland. In this case there is no case law I have ever seen that suggests that the OP would be able to remain. Article 13 does not apply in such a situation as there is no divorce. The Department will simply say that the UK Husband is no longer exercising EU Treaty rights.
iii) Divorce occurs either in Ireland or S Africa. There is no longer a marriage and the OP would be entitled to rely on Article 13 of 2004/38.
Divorce in Ireland is a very slow process but the OP said that he can get divorced in S Africa in 6 weeks. There is the question of whether that divorce would be recognised in Ireland but that's for somebody who knows more about family law than me.
http://www.bailii.org/uk/cases/UKIAT/2006/00046.html
http://freemovement.wordpress.com/2007/ ... d-appeals/
http://www.immigrationboards.com/viewto ... 9e127f5640
http://www.newzimbabwe.com/pages/immigr ... 14286.html
A marriage is not subsisting when a decision has been made to separate and the couple no longer live as man and wife and now have new relationships.
However, until there is a divorce, there seems to be no obligation to disclose this fact. I don't believe that the op could say that as of today, the marriage is subsisting.
In light of Ireland's lengthy requirement for separation (4 years) possibly longest in Europe, it makes the 3 year requirement a bit redundant in many cases in that it assumes that all EU states allow for quick divorces. In addition, it can take even up to 1 year in some court districts to even get the case finished.
However, the op should note that all may not be loss. Even if not divorced, but spearated, provided that at least 3 years of relationship (even whilst in SA) and marriage can be proven , and that you are stilling working, I highely doubt that you will be asked to leave. It may however, be granted on domestic basis as oppose to EU law. But who cares, its still stamp 4, and it does not effect one's
The cases you aver to in relation to subsistence of the marriage all refer to UK cases and to national law in the UK in relation to spousal visas so I'd be of the opinion that they are not relevant in Ireland, based on the Irish Constitution's protection of the institute of marriage.
There is an obligation on the foreign national to inform the Department of any change in circumstance and it would seem clear that a separation for a person here based on marriage would fall under this.
However, you're correct in stating that it would be likely that the OP should be able to remain under domestic law provided she is providing for herself. An application to the Minister for a change in circumstance under the Immigration Act 2004 would be the most appropriate course of action. Realistically the OP should see an immigration solicitor as this can get complicated.
Uk law is of persuasive value only and is not of precedential value in Irish Courts as a rule. Therefore, yes, UK law is regularly produced in pleadings but is only of persuasive value. I have never seen a case in which a UK precedent was relied on to come to a judgement in immigration law in Ireland. If you have a link to such a case, I would very much like to see it.walrusgumble wrote: The relevance of British law in Ireland, is a very weak argument. British law is regularly quoted, adopted, applied and persuasive when dealing with Irish law, especially Irish Immigration Law. What do you base your argument that Ireland is different in light of Article 41 of Bunreacht ná hÉireann? The Constitution provides for divorce. THe Courts recongise that a family unit still remain where there are children, even if the parents divorce.
It is accepted a subsisting marriage is one that is on going and it can't not be said that a marriage is alive when there has been a clear decision to end the relationship. Although, I think the Americans take your view.
Immigration Divisions in many countries are suspicious when there is a lack of evidence that there is an on going marriage. Hence, its not enough to say you are legally married, you must show evidence of a subsisting marriage.
The Department will ask for information and evidence of when the relationship started, when one married, when one separated, why that occurred and the prosepects of reconcilliation. THe OP should be ok
Regarding the Directive, I stated that there is no obligation to do this, but it would be in the person's best interest to keep the department up to date on immigration issues (that is a policy from the department, not eu law), but yes, op should keep them up to date.
Although more to do with EU /ECHR Law, this case gets quoted quite alotMuttsnuts wrote:Uk law is of persuasive value only and is not of precedential value in Irish Courts as a rule. Therefore, yes, UK law is regularly produced in pleadings but is only of persuasive value. I have never seen a case in which a UK precedent was relied on to come to a judgement in immigration law in Ireland. If you have a link to such a case, I would very much like to see it.walrusgumble wrote: The relevance of British law in Ireland, is a very weak argument. British law is regularly quoted, adopted, applied and persuasive when dealing with Irish law, especially Irish Immigration Law. What do you base your argument that Ireland is different in light of Article 41 of Bunreacht ná hÉireann? The Constitution provides for divorce. THe Courts recongise that a family unit still remain where there are children, even if the parents divorce.
It is accepted a subsisting marriage is one that is on going and it can't not be said that a marriage is alive when there has been a clear decision to end the relationship. Although, I think the Americans take your view.
Immigration Divisions in many countries are suspicious when there is a lack of evidence that there is an on going marriage. Hence, its not enough to say you are legally married, you must show evidence of a subsisting marriage.
The Department will ask for information and evidence of when the relationship started, when one married, when one separated, why that occurred and the prosepects of reconcilliation. THe OP should be ok
Regarding the Directive, I stated that there is no obligation to do this, but it would be in the person's best interest to keep the department up to date on immigration issues (that is a policy from the department, not eu law), but yes, op should keep them up to date.
Specifically in terms of marriage, the fact that a separated person is not permitted to remarry until a decree of divorce is obtained, would suggest that the viewpoint of the State on subsisting marriages is quite clear (see S10 Divorce Act 1996). I would also refer to the following link in reference to registration of the birth of a child by a couple who had separated:
http://www.kildarestreet.com/wrans/?id= ... -05.1566.0
They were married and so automatically the husband was to be listed as the father on the birth cert despite the fact that the child was not the hussbands. The registration of the birth under the actual father's name required a statutory declarration or a court application to overcome the presumption of the fact that there was a subsisting marriage despite the separation.
You are correct in saying the the Constitution provides for divorce and you will note that this is only in accordance with law. Under irish law, a marriage is not dissolved until there is a divorce, therefore there is a subsisting marriage during a separation. Therefore during a separation, a non-EU individual is still classed as married so as long as the EU National remains in the State exercising their EU Treaty rights
THe difference between the UK and Ireland is the fact that we have a constitution that guarantees to uphold "the institute of marraige on which the family is founded" (Article 41). The UK has no constitution and no equivalent in its' own laws. That is a huge difference and it's the main reason that UK precedent on the definition of subsisting marriage would not be accepted here as this would lead to a potential constitutional conflict.
Also, can you provide a reference for a case where the family unit was recognised even where there was a divorce? It would seem to me that this is in direct contravention of Article 41 of our Constitution (institute of marriage on which the family unit is based).
Muttsnuts wrote:The requirement for full and frank disclosure comes from the 2006 regulations transposing the directive into Irish law, which makes it an offence to give false or misleading information in an application (Section 25, SI 656 / 2006). Therefore when the OP is applying for her upcoming renewal, she must inform the INIS of the fact that the husband has left.
I am not clear that this is advisable in all cases. You have to ask yourself what the motivation of such a self reporting is, especially in situations where the applicant is still definitely or is most likely covered by EU law. Relying on the grace, kindness and good legal judgement of DOJ is sometimes contraindicated.Muttsnuts wrote:In general, it is also advisable to inform INIS of a separation where there is no prospect of reconciliation. If it is the case that an application under domestic legislation must be made, this takes a long time to get resolved (over a year in many cases) so the best course of action is to inform the Department by making the relevant application under domestic legislation as soon as possible.
The father of the children is not the EU citizen, so this is not an option.Muttsnuts wrote:To the OP, I note you only want to stay until your child finishes school in June of next year. If you are sure of this, then you could equally seek to stay until then under Article 12 3) of the 2004/38 directive and then apply for permanent residency. It's a bit messy but it might suffice for your situation.
Re family unit. The definition of the family unit of Article 41 of the Constitution is the traditional married couple and child or children. THis was confirmed in Zappone v Revenue COmmissioners. The rights accrued by single parents or unmarried parents etc do not come from Article 41, you are correct to say that they arise through other Articles e.g. in Nicolau v An Bord Uchtala Walsh J stated that they arise on account of Article 40.3 and are unaffected by Article 41.walrusgumble wrote:
Although more to do with EU /ECHR Law, this case gets quoted quite alot
http://www.bailii.org/ew/cases/EWCA/Civ/2000/315.html
The IRish courts in immigration tend to come up with their own views (which are similar to the English) and merely point out the English cases as influence. How many of the English cases are Judicial Reviews, like Ireland?
Regarding the family unit, could you ever read what is actually said. I said a family unit remains where there are children, even if the parents are divorce. I never said, simply a married couple. The unit is between the parent and the children, the unit between the parents themselves is disolved. Are you seriously suggesting that there no longer is a family unit between the child and the parent? Its not different if one parent died. Rights to access and guardianship must be against the Constitution then. you have heard of the European Convenetion on Human Rights? Although Article 41 still does not recognise "de facto relations" and nor is the ECHR fully implemented into Irish law, but one could seek Article 40. Regardless, you have cases like Keegan v Ireland, Sahin v Germany.
By your idea, what basis one possibly could justify an non eu father staying in Ireland after separating, where the mother and children are still here. Of course, to remain an active figure in children's lives.
a "subsisting marriage" when discussing immigration, is no longer in active when the couple separate. It is still very much legal. This view point is taken with IMMIGRATION in mind. When the department are looking at whether to renew an application they will look at how long the marriage was active, and not how long it took from separation to divorce or include the time from marriage to the divorce - that would be ridiculous and open to abuse and actually failing to do what article 41 intends to do ( eg a marriage lasting merely 1 year yet one can still stay they meet the 3 year rule by the time there is a divorce, which some might take their time in making) You really think that the Irish would not adopt a similar view to the English?
"Specifically in terms of marriage, the fact that a separated person is not permitted to remarry until a decree of divorce is obtained, would suggest that the viewpoint of the State on subsisting marriages is quite clear (see S10 Divorce Act 1996). I would also refer to the following link in reference to registration of the birth of a child by a couple who had separated:"
Not neccessarly the case when dealing with immigration and renewal of status. I can assure you,during my time in the department, in areas involving non eu people married to Irish Citizens, they will have great difficulty getting a renewal of legal status after they physically separate if the marriage really only last less than 2 years and there is no prospect of reconcilliation. All this despite not being divorced.There is no issue of wishing to marry in the op's case.
There is still a subsisting marriage under Irish law and the EU Spouse is still in the State presumably exercising her EU Treaty Rights, thereby the father could remain on that basis. WHish is exactly what I told the OP.walrusgumble wrote: By your idea, what basis one possibly could justify an non eu father staying in Ireland after separating, where the mother and children are still here. Of course, to remain an active figure in children's lives.
I agree. If you can remain within the sphere of EU Treaty Rights, this is absolutely to the OP's advantage.Directive/2004/38/EC wrote: I am not clear that this is advisable in all cases. You have to ask yourself what the motivation of such a self reporting is, especially in situations where the applicant is still definitely or is most likely covered by EU law. Relying on the grace, kindness and good legal judgement of DOJ is sometimes contraindicated.
Article 12 3) of 2004 / 38 :Directive/2004/38/EC wrote: The father of the children is not the EU citizen, so this is not an option.
I am not sure if I share your optimism. If I rewrite this, removing clauses which clearly do apply, I get the following:Muttsnuts wrote:Article 12 3) of 2004 / 38 :
"3. The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies."
My reading of that is if the EU Citizen leaves and the children are enrolled in school then the parent with custody(regardless of nationality) can remain with the children until they complete their studies?
In this case it is not clear who the children refers to, if it is not the children of the EU citizen. It kind of hangs.3. The Union citizen's departure from the host Member State [...] shall not entail loss of the right of residence [...] of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies."
Sorry, you're right. Thought kids were a product of this marriage as opposedto a previous one...Directive/2004/38/EC wrote:I am not sure if I share your optimism. If I rewrite this, removing clauses which clearly do apply, I get the following:Muttsnuts wrote:Article 12 3) of 2004 / 38 :
"3. The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies."
My reading of that is if the EU Citizen leaves and the children are enrolled in school then the parent with custody(regardless of nationality) can remain with the children until they complete their studies?In this case it is not clear who the children refers to, if it is not the children of the EU citizen. It kind of hangs.3. The Union citizen's departure from the host Member State [...] shall not entail loss of the right of residence [...] of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies."