walrusgumble wrote:
1. You can't comment on what the Member States did and did not intend when they decided to enact Directive 2004 /38 EC. This is because, as the Courts themselves consistently point out, the minutes and preparation documents are not published. Even the Courts don't pretend that they can or do. The interpretation given, comes solely from the Courts, themselves. They have no power to legislate. The fact that in the Zambrano case, a substantial number of States (ie States of genuine standing) and the COMMISSION itself argue against the applicant's clearly suggests that the view held by you is not one shared by the law makers. Going by what the Directive actually says, its clear what the directive deals with. The fact that another Member State, one not known to be entirely bad boys when it comes to Free movement, has put questions to the Court, regarding fees and what the Treaty and Directive would say, is another clear indication that is not a black and white matter. There is doubt, that is all that's being said.
I don't disagree that there is doubt on the consequences of Zambrano. From that point of view the judgement is a bad one as it does not go far enough to make clear who can rely on Zambrano and under what conditions. And yes, I don't have details of the preliminary views/minutes etc, but based on the preamble, notably part 4) referring to Citizenship as the fundamental status of the Union, I would say that the aim was clearly to make the 2004/38 Directive a "one stop shop" for the exercise of the freedom of movement. As is often the case, not every conceivable scenario was foreseen so we have subsequent cases that you mentioned. e.g. CHen, Metock, etc.
This is even seen in Irish domestic legislation where the Article 26 procedure is not used on potentially unconstitutional legislation as it is preferable to wait until some individual ends up in circumstances that infringe his/her constitutional rights and a constitutional challenge needs to be taken, this person's cirxumstances arising out of a set of circumstances that are not foreseen.
walrusgumble wrote:
2. The Fact that the Court in Zambrano said that that the Directive is NOT RELEVANT and refused to rule on that side of the argument, is also a similar conclusion in the Chen case, which considered similar Directives (now repealed by Directive 2004 but substantially containing the exact same provisions). You may have an argument in the Treaty itself, but not on this Directive. That is all that is being pointed out. So you are wrong.
I never said that Directive 2004/38 should have decided Zambrano. It is clear that the Directive did not apply. I've never said otherwise other than to say that ideally, this scenario perhaps should have been dealt with by the Directive (when they were drafting the Directive).
walrusgumble wrote:
3. Returning to what was and what was not intended, I put it to you that you may be wrong. There was plenty of cases before Directive 2004 (which came in 2006, and enacted before Chen) such as Chen case to suggest that the Member States had plenty of foresight to know what it was dealing with ie Non Nationals coming into a country taking advantage of laxed citizenship rules. (I don't in any way suggest anything sinster there). The Directive is crystal clear that unless there is actual movement, the matter maybe an internal issue. If its an internal issue, EU law don't apply. Zambrano , is a once off exception.
Secondly, cases like Baumbast, D'Hoop, Bidar concerned social welfare entitlements and student fees involving EU citizens, many of whom would in future, due to an increasing influx of immigration, come from third countries (again, I say nothing adverse). In 2004, (remember some of the cases came shortly before and after the directive,) the Directive dealt with over ruling these judgment in some (but not all instances)at Article 24(2) of the Directive. See Forster 2008 as an example.
So to say that Member States did not foresee these problems is arguably not well founded. Moreover, you speak of codifying previous legislation. You are correct, but the previous legislation did not deal with this either, and Chen, a case where the Child (who could not rely on legislation) had to, as a last gasp and last resort, had to rely upon the COURT's interpretation , however creative, on the Treaty Articles themselves.
The Member States could easily have enacted a Separate Directive to deal with your issues, because they fall outside Directive 2004 / 38 EC and previous. It had plenty of warning from Ireland. Chen after all was one of the few cases actually heard by the full composition of judges in the ECJ, and Ireland got a lot of stick from the Commission over the laws. It did not do so.
It's often happened that where a law has been said to be on dodgy ground such as the defence of "honest mistake" in statutory rape in Ireland. That law was flagged for years as potentialyl a problem prior to the "A" case but the Government ignored it. The fallout from Chen and other challenges flagging problems with the "purely internal situations" were red flags to the Member States and the EU but as per usual, a wait and see approach was adopted, hence we have Zambrano and the problems with its' implementation (also due to lack of dicussion in the Zambrano ruling itself though).
walrusgumble wrote:
You are advocating a stance that the Directive 2004/38 EC does not purport and a stance that the Court themselves don't accept. And you are saying I am wrong? Point out the legal basis for such a contention.
The fact that Zambrano argued on the Treaty does not equate that Directive is now to be interpreted in the way you suggests. There are many other Directives out there. (well, in this case, not really) The Court specifically and expressly ruled out Directive 2004 / 38 EC. It applied the Treaty itself as a stand alone basis. For you to suggest what you have said, would suggest a lack of understanding of the nuances of law. (I am not trying to have a go at you)
Once again, I am not saying that the Directive supports Zambrano, it does not. If you read my post I confirmed that Zambrano was based on the TFEU. What I said was that I was of the view that this type of scenario should have been dealt with in the Directive.
As for you not trying to have a go at me....I respectfully suggest that you are but that's ok, maybe that's your thing. I can take it.
walrusgumble wrote:
3. No one is saying Zambrano rules out anything. I was responding to a posters reference to the Directive, and pointing out that that Directive, as per the case itself, is irrelevant. Its the Treaty Article itself that is relevant.
That's what I said. Don't see the disagreement there.
walrusgumble wrote:
4. To say Zambrano is legally obvious as oppose to politically or morally (which you might be right) is nonsense. There was no legal basis, as per the precedent of the Courts itself or Treaty to go that far. The Advocate General's Opinion was a political one and not legal. A political one, that clearly was not supported by the Member States and COMMISSION who made submissions at the hearing. However, at least it was a decent explanation that would have given some credibility of the Court actually addressed the issue and ruled in favour. There is an understanding as per Chalmers, that when a Court makes no reference to Advocate General's comments on a issue, it indicates that it ignores or rejects their contention. By the way, this notion that Courts nearly always agrees with Advocate General is entirely bollox and completely unfounded, something academics are realistizing. People who say that actually clearly never reading both, and simply presume just because both read to the same conclusion. That in law is an entirely unsatisfactory response, its the reasoning, from a legal perspective that counts.
The major criticism in The Courts decision, is not per se the actual decision, but the complete lack of expressed reasoning and failure to deal with issues raised by the Advocate General. It suggests that the AG completely wasted her time and giving an interesting account of her view.
I agree that at the time, perhaps a Zambrano type scenario was not obvious but in hindsight I think it clearly was. It possibly did not come up until now as countries were not inclined to deport their own citizens, no matter how they obtained the passport of that State. Normally, Zambrano type scenarios were dealt with by national law but it was conceivable that someone might, as a last throw of the dice attempt to argue a legal point based on EU Law. The greatest legal minds in Europe should have seen it coming is all I'm saying.
I agree with your sentiments on the lack of detail and discussion in relation to Zambrano itself. It is of no help to formulate and state a bald rule without elucidating on the details of same.
walrusgumble wrote:
Again, for Zambrano, I don't expect that you will appreciate this, because it does not, for one iota, affect you or others, and ye have genuine self interests that it does not.
Presumptuous. I have no personal interest in the Zambrano case other than curiosity.
walrusgumble wrote:
5. The Court made no comment whatsoever, that Zambrano type cases fall under the Directive. The Court clearly said it did not. So too, did the AG. In McCarthy the Court said that even adults who are in a better position than a child to exercise rights, don't fall within the Directive if they don't comply with it. The Directive is irrelevant. It is the Treaty Article itself that is relevant. The Treaty Article, as a stand alone provision, which would make any reference to any Directive or Regulation irrelevant.
Zambrano does not in any way effect the application and interpretation of Directive 2004. To suggest such,is ignorant of law. I am now calling on you to cite the explicit quotes from Zambrano and subsequent (and relevant cases) that supports your contention.
AGAIN, I have not suggested that Zambrano involves the application of Directive 2004/38 in ANY WAY. It was based on Article 20 of the TFEU. That's what I said in all of my posts on this subject.
walrusgumble wrote:
6. Regarding Ireland and your argument, you have completely misinterpreted what I have said. I made the distinction of where both parents are non Irish / Non EU parents (like Zambrano) and the cases where at least one parent is in fact an EU citizen. There is questions coming from the Department about this, and it will be interesting what the department do while Deccie case is being considered, because, the department can not delay 1-2 years while that case goes through the CJEU. It was also a comment made by our own Courts previously, as it was influenced by McCarthy (though that was an adults case)
In the cases involving where one parent is an EU national, how many posters here, have got a decision yet, and how many have succeeded?
I had mentioned the case where both parents are non eu but one had legal status, what happens then (after all, one of the parents can stay - thus not like Zambrano) it appears, from what I have heard from friends, that Zambrano applies regardless.
The issues regarding splitting, clearly shows that you did not read or understand what I said. At no time have I ever said that that would hurt. At worse, I said, it was an issue that the Minister is looking at. In my previous posts on other threads I have clearly pointed out that as seen in the IBC cases, that that issue is irrelevant, and thus, you are correct.
However, in all cases, and this is what I was getting at here; it is not relevant if parents like each other or are with each other. What is relevant is the question of whether the parent at risk, normally the father, is playing a role in the child's life. Zambrano itself actually talks about "carer". Fathers can show that as per Article 8 ECHR, that he does play a role, without relationship with mother. You are making an argument that I never raised. I hope this confirms that.
The question in Zambrano type cases, where one parent is a eu citizen and the other is not, as per Deccie, asks about whether the child is genuinely dependent on the non eu parent, who may have no right under eu law(eg can't rely on relationship with eu mother and can't work in eu until he gets rights via child . That I don't have an answer for, because I believe that dependence is more than financial. The Spirit of this in EU law is quite. I won't be surprised that Deccie will favour the parent on this and rely on ECHR to do so. At the same time, I won't be too surprised if they rule against
Again. what you said regarding Ireland is correct, but I never said anything about that.
You made a comment referring to whether Zambrano applies "in general" and you suggested that there's a question as to whether it applies only to situations "where both parents are non-EU". In response, I told you that the INIS are appling Zambrano liberally and in the circumstances I mentioned. It's not an argument I'm raising, you mentioned it first and I addressed it with a statement of fact.
walrusgumble wrote:
7. I also responded to the nonsense that the fee, assuming that it was correct to apply if EU law is not relevant ( I say if. I don't say that this fee is legal, I have doubts) would be an obstacle. The reasoning was, if the fee is legal, (again, remember, I have only responded to the reasoning of others, which I do not agreeing with ie invocation of the Directive, not the result) then how come so many came up with the money under the domestic ibc schme and were able to , rightly, afford lawyers to go to the high court to deal with bode and dimbo?
Ever hear of no foal no fee. Plenty of solicitors would take such a case based on this arrangement.
walrusgumble wrote:
You don't address that (but to be fair, you simply say that this fee is illegal, you might be correct - but remember i am only critical of the reasoning given - zambrano says nothing and others wrongly talk about the directive)
Don't believe I said anything about whether the fee is illegal. As it stands, the fee is definitely legal. Whether it constitutes a barrier to free movement is debatable given that its' only €150. Again this is a scenario that has to be teased out.
Fair enough, the work permit holder here for 3 years having an Irish child should be able to afford €150 if he's been working but what's the scenario if he lost his job and has been unemployed for 6 months prior to the birth? He has no access to social welfare and can;t get a job in the current climate. €150 to him is a large sum but he clearly qualifies under Zambrano. The real question is if there is anyone with a hard enough neck to risk a high court costs order against them over the sum of €150! 99.99999% of people will scrimp and save to get the €150 as the reward for doing so is worth more than ten times this sum.
To round this all off and to anser the OP's question, while there is a question to be asked as to the validity of this charge, I don't see it getting challenged in court. Too much risk for the sake of €150!
