Muttsnuts wrote: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.
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.
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).
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.
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