walrusgumble wrote:EUspouse82 wrote:Hello everyone,
I posted on here previously about been denied PR on the basis of marraige to a British citizen. I have decided to appeal this decision but to be on the safe side and mitigate my lack of immigration status in the state, I have been adviced by people to apply based on the Zambrano decision by the the ECJ to allow parents of Irish children to be given legal residence in the state.
My question, however, is based on the fact that both parents are not non-EU citizens, as earlier mentioned my spouse is British but the fact is we are married and have lived together for 6 years and we have 4 children together. 3 of my boys are Irish citizens, we have lived in Ireland for over 5 years, we have proof that I am in their lives, I am currently studying for research degree. We have school letters, doctor letters, proof of address etc.
Specifically, in the opinion of members of the forum, do ye think that the fact that my spouse is an EU citizen would have any adverse effect on my application?
More importantly, in the event that I actually qualify under the Zambrano criteria, since my case is under appeal at INIS EU treaty rights division, do I have to make the application to repratration division or do I go to my Immigration officer in my local Gardai?
The fact that at all times, on paper that you have been legal in Ireland, or to be blunt, you did not come as an asylum seekers (suspicion arises, thats just a fact of life, whether its wrong or correct) I would imagine / expect, at least, under domestic law it self and even Zambrano, you will be ok.
If however, you were not an legal citizen, (that's if, under EU law, the State basis this on wife's failure to comply with Article 7 - which you have not stated) I would imagine, because your wife is an EU citizen, the State will argue (whether correct or wrong) that Zambrano is limited and does not apply. What I mean by this is, in the State's view (not mine), it wrong to say that the child's right to remain in the Union is genuinely deprived as ye all could return via eu law to her' country under EU law as per singh 1992 ) the State would have tried to limit Zambrano effect . It is an issue which the Deccie & Others v Austria (State thinking McCarthy holds the limiting key) which has yet to be considered by the AG and Court. Because of the unpredictability of CJEU, it could go anyway. I personally, regardless of what I think , believe the CJEU will not make the principle / spirit of Zambrano as so limiting, since a Child is involved
Even, if that immediate section is correct, due to the arbitrary nature of department, i would not be surprised that the Minister would let your case slid and rely on Zambrano, due to your history.
Because the Children are Irish, (and British via mother- but its unlikely that they will recongise dual citizenship like the situation McCarthy 2011) it would have been handy to rely on their British Nationality and if in school, article 12 Regulation 1612/68 as per Teixeria & Ibrahim Judgments 2011 - if it was the case, it would be happy days as no need to show financial self sufficiency. Doubt it though (in light of potential non recognition of dual British-Irish Citizenship) - Look into that
As for domestic, under normal immigration and if (that is a small if) Zambrano did not apply, and if your wife was not technically exercising her eu rights (remember, brits rarely get deported by Irish law) , the Minister might propose to deport you, a section 3 letter would come out, and you make an application. Considering your strong connection with Ireland, your children's ages, your professional history in Ireland, your ability, if allowed, to maintain family without recourse to social (ignore the FAS thing), you would make it very difficult for the Minister to send you home.
Those are the likely possibilities. You should consult with a fully qualified Immigration Lawyer.
As it is now, can you not be able to rely on EU law now? ie Is your wife exercising rights under Article 7 of Directive 2004 38 ec (eg study with some insurance)? Just make a simply EU 1 (but clearly saying that you don't meet PR) - assuming you are not still going to fight the PR refusal.
