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EU law has no right to interfere with the immigration laws of a national country, where, it is not provided for under EU law. The sooner people cop onto that the better. That is essentially what McCarthy and Dereci accepts but just throw a bone regarding ECHR, which they already have to consider. If you want EU law to kick in, the Irish person should at least make an attempt to exercise their rights and move, its the cleanest and certain way.Rip v Winkle wrote:I’ve read through the Judgement. It is pretty much what I would have expected. The questions were narrow, requesting clarification, and seemed to come from the Austrian Administrative Court itself.
I’d like to see what decision the Austrian Court finally takes. Does anyone know why Bundesministerium is trying to deport these people?
It looks strange. There was a 2009 case (Verwaltungsgerichtshof Zl. A 2009/0047-1 (2009/21/0311) that was referred to the Austrian Constitutional Court. They, in turn, recommended that certain clauses relating to issuing of “prohibition to remain” orders be amended so that an individual could not be treated less favourably simply because his father had the “wrong citizenship” ie Austrian. They remarked that it was paradoxical that acquisition of Austrian citizenship by the young man’s father (formerly Turkish) could turn out to be harmful. It seemed to be unconstitutional.
Having said that, I am very much against it. I can’t see what interest is served by excluding Irish citizens from “freedom of movement” privileges. Does anyone have any rational explanation ?
For me “reverse discrimination” can only be dealt with by individual member states. After all, it is the member state’s own citizens who suffer any adverse effects. If the political Union were closer that might change.
Having said that, I am very much against it. I can’t see what interest is served by excluding Irish citizens from “freedom of movement” privileges. Does anyone have a rational explanation ?
walrusgumble wrote:EU law has no right to interfere with the immigration laws of a national country, where, it is not provided for under EU law. The sooner people cop onto that the better. That is essentially what McCarthy and Dereci accepts but just throw a bone regarding ECHR, which they already have to consider. If you want EU law to kick in, the Irish person should at least make an attempt to exercise their rights and move, its the cleanest and certain way.Rip v Winkle wrote:I’ve read through the Judgement. It is pretty much what I would have expected. The questions were narrow, requesting clarification, and seemed to come from the Austrian Administrative Court itself.
I’d like to see what decision the Austrian Court finally takes. Does anyone know why Bundesministerium is trying to deport these people?
It looks strange. There was a 2009 case (Verwaltungsgerichtshof Zl. A 2009/0047-1 (2009/21/0311) that was referred to the Austrian Constitutional Court. They, in turn, recommended that certain clauses relating to issuing of “prohibition to remain” orders be amended so that an individual could not be treated less favourably simply because his father had the “wrong citizenship” ie Austrian. They remarked that it was paradoxical that acquisition of Austrian citizenship by the young man’s father (formerly Turkish) could turn out to be harmful. It seemed to be unconstitutional.
Having said that, I am very much against it. I can’t see what interest is served by excluding Irish citizens from “freedom of movement” privileges. Does anyone have any rational explanation ?
For me “reverse discrimination” can only be dealt with by individual member states. After all, it is the member state’s own citizens who suffer any adverse effects. If the political Union were closer that might change.
Having said that, I am very much against it. I can’t see what interest is served by excluding Irish citizens from “freedom of movement” privileges. Does anyone have a rational explanation ?
It is clear where the major member states think of this, as too the Commission, in that the traditional notion of free movement is not dead, yet. And yes, you are right "reverse discrimination" is a matter for national courts, in this context.
Anything else, let it be for the National Courts under National Laws, with consideration, if any , of ECHR. Whatever they decide is valid, so be it.
Why the restrictions are in place? To put it bluntly, to stop encouraging relationships starting or being used as a side step into the immigration system for failed asylum seekers and illegals. THat is the reality! Many of these people (regardless of their colour, race etc) would never have got a visa or work permit had they tried to enter the country in a legitimate manner. (we all know this, so don't get all high and mighty. Its a factual statement and not a statement trying to insult)
I am not insulted.Why the restrictions are in place? To put it bluntly, to stop encouraging relationships starting or being used as a side step into the immigration system for failed asylum seekers and illegals. THat is the reality! Many of these people (regardless of their colour, race etc) would never have got a visa or work permit had they tried to enter the country in a legitimate manner. (we all know this, so don't get all high and mighty. Its a factual statement and not a statement trying to insult).
I would suggest that you speak for your self, point out what was being rude and I will happily explain to you the clear misunderstanding that you have created. If you will notice, any discussion with Rip, from previous posts, have been cordial, in fact! There is nothing really substantial in our discussion that we disagree with in relation to this case.Regulator56 wrote:walrusgumble wrote:EU law has no right to interfere with the immigration laws of a national country, where, it is not provided for under EU law. The sooner people cop onto that the better. That is essentially what McCarthy and Dereci accepts but just throw a bone regarding ECHR, which they already have to consider. If you want EU law to kick in, the Irish person should at least make an attempt to exercise their rights and move, its the cleanest and certain way.Rip v Winkle wrote:I’ve read through the Judgement. It is pretty much what I would have expected. The questions were narrow, requesting clarification, and seemed to come from the Austrian Administrative Court itself.
I’d like to see what decision the Austrian Court finally takes. Does anyone know why Bundesministerium is trying to deport these people?
It looks strange. There was a 2009 case (Verwaltungsgerichtshof Zl. A 2009/0047-1 (2009/21/0311) that was referred to the Austrian Constitutional Court. They, in turn, recommended that certain clauses relating to issuing of “prohibition to remain” orders be amended so that an individual could not be treated less favourably simply because his father had the “wrong citizenship” ie Austrian. They remarked that it was paradoxical that acquisition of Austrian citizenship by the young man’s father (formerly Turkish) could turn out to be harmful. It seemed to be unconstitutional.
Having said that, I am very much against it. I can’t see what interest is served by excluding Irish citizens from “freedom of movement” privileges. Does anyone have any rational explanation ?
For me “reverse discrimination” can only be dealt with by individual member states. After all, it is the member state’s own citizens who suffer any adverse effects. If the political Union were closer that might change.
Having said that, I am very much against it. I can’t see what interest is served by excluding Irish citizens from “freedom of movement” privileges. Does anyone have a rational explanation ?
It is clear where the major member states think of this, as too the Commission, in that the traditional notion of free movement is not dead, yet. And yes, you are right "reverse discrimination" is a matter for national courts, in this context.
Anything else, let it be for the National Courts under National Laws, with consideration, if any , of ECHR. Whatever they decide is valid, so be it.
Why the restrictions are in place? To put it bluntly, to stop encouraging relationships starting or being used as a side step into the immigration system for failed asylum seekers and illegals. THat is the reality! Many of these people (regardless of their colour, race etc) would never have got a visa or work permit had they tried to enter the country in a legitimate manner. (we all know this, so don't get all high and mighty. Its a factual statement and not a statement trying to insult)
Mr Walrusgamble, I am not sure if anyone has ever told you that the manner in which you reply to people on this forum is very rude and sometimes comes across as ignorant. Your posts are indicative of someone with an agenda, majority of posters know this and if you notice, people largely ignore your posts these days.
There was no where in R vs Winkle's post that came across as high and mighty as you put it. We know you are overjoyed withe Dereci ruling, but it is not as clear cut as you are imagining.
I agree with you that the EU does not have the right to interfere with national immigration unless provisions are made under EU law. As you would know, as the union gets more politically integrated, more provisions would be made that would supersede national immigration laws.
You don't need to get your knickers in a twist and be pontificating about why member states are putting in place restrictions- as you put it , its all about illegals and asylum seekers.
It is very rich coming from you and your line of thought about national sovereignty when the German parliament (Bundestag) has seen, examined and signed off the Irish budget before the Irish parliament and indeed the Irish people have had a clue about the design of the front cover.
My friend get used to it! In your lifetime, immigration policies would continue to benefit EU citizens and their families. The despicable act of constructively deporting EU children from Ireland is a thing of the past.
You said cases of these nature should be left to national courts to decide and whatever their decision - so be it...In your dreams Walrusgamble!..cases would continue to go to the ECJ and ECHR for adjudication and irresponsible governments would continue to be disgraced and have to pay heavy litigation costs like the Metock case.
I would advise you to accept change because you would become hypertensive at a young age with disappointments- the world has changed so should you!
I don't see how Austrian Courts will or can do much. Austrians will use the economic climate etc as an excuse. But it is a bit tricky with long established immigrants because Article 8 ECHR will be helpful. It depends on the facts of the case. Kosovo , I'm surprised with Austrian attitudes.Rip v Winkle wrote:Why the restrictions are in place? To put it bluntly, to stop encouraging relationships starting or being used as a side step into the immigration system for failed asylum seekers and illegals. THat is the reality! Many of these people (regardless of their colour, race etc) would never have got a visa or work permit had they tried to enter the country in a legitimate manner. (we all know this, so don't get all high and mighty. Its a factual statement and not a statement trying to insult).Rip v Winkle wrote: I am not insulted.
However, and please correct me if I am wrong, I understand that all an Irish citizen has to do to engage "freedom of movement" rights is to live for a period (I've seen three months quoted as minimum) in some town just across the border in Northern Ireland. Newry is within easy reach of the biggest centres of employment in the Republic. A similar situation applies along the internal borders of most of the contintental members of the EU.
Pretty much, yes. The practical reality is questionable though; will the spouse be able to show that she has exercised her treaty rights, ie comply with Article 7 of Directive 2004 / 38,
Rip v Winkle wrote: This does not seem to be much of a barrier to someone who has structured his or her life to circumvent immigration controls- failed asylum seekers etc.
Metock makes this easy, yes your are correct. Genuine relationships would go ahead with this, fakes won't. It still comes down to whether or not , after going to eg Newry, will EU person get a job.
Your comment is an example of the tone of attitude taken by the ECJ in McCarthy. She did not bother to move, they say, sure on an EU context, you and your hubby should be grand. The court did not possible Zambrano like effect but don't give examples.
It always was a shot gun approach, and only favored by the non EU person or the people advocating a Federal Europe.Rip v Winkle wrote: Reverse discrimination looks like a "shotgun approach" to the problem - lots of noise, fails to do much damage to the target and causes disproportionate damage to unintended targets. Not to mention that , in my opinion, it offends against the spirit of Article 40.1 of our constitution.
Has the Minister for Justice ever stated what he is trying to achieve? The Immigration act merely identifies treaty rights as one of the factors that must be taken into account when granting whatever stamp is applicable .
I would take a step back on the Article 40.1 argument. Though, for benefit of doubt , I should ask you to clarify. Article 40.1 is one of the most weakest Constitutional provisions in Irish Law. There is no such thing as Equality for all. You treat like for like , you don't threat unlike the same. The position with a Static Irish Citizen married to a non eu national is entirely different from that of other marriages involving Irish Citizens.
You would likely, as previous Irish immigration cases have done in the past, failed on this argument.
As for the Current Minister? I have seen no coherent policy. He took credit for work of another administration regarding the first batch of citizenship grants earlier this year, most of whom had already waited the 1 1/2 - 2 years. He has u - turned on the Zambrano declaration in March. He is has not offered to withdraw most of these cases in High Court. He might be more favorable under IRISH DOMESTIC LAW HOWEVER.
"Our Constitution" ? You Irish?
"The Immigration act merely identifies treaty rights as one of the factors that must be taken into account when granting whatever stamp is applicable"
Explain what this means please.
Rip v Winkle wrote: I did manage to find out a bit more about Dereci + the other cases. The Austrian Minister for the Interior (she is now Mnister for Finance) Maria Fekter has said that she intended to move against long established undocumented residents http://austrianindependent.com/news/Pol ... s_minister.
While I hope that the Austrian courts find against the Ministry and I disagree completely with most of what she is quoted as saying, at least she has the honesty to state that this is policy. It is not something that we must guess at.
I did not know that you had contacts with the Court of Justice of the European Union or privy to Judge's private deliberation. You are a dark horseMorrisj wrote:Infact to be completely honest,The Ecj Judge did not want a large amount of cost on the Austrian Goverment that is the only reason they somehow step aside dereci's case from other cases by using the Ankara policy.The ruling was for other cases linked to McCarthy and for others who have decided to bring secondary family members(their ancestors,grandparents E.t.c) turning immigration laws into a flood gate which i don't agree with.To round it up,Dereci means Adult cannot benefit from zambrano simple
you need to read my last post which directly quoted what you said. i can't say your talking crap as its not constructive so your asked to explain yourself.i actually directly dealt with what you said.there is no trickery.we are discussing law so provide law to support what you said, provide something at least.Morrisj wrote:legal ground to support my case?What a dream,you are really in a world of illusion,get back to your senses.Back to my question and dont play smart,diverting from my question.Yes zambrano applies 100% if both parents are non eu,now to make it simple why didnt the Ecj Judge say one of the parents(both non eu)should stay with the child and use CHEN (getting residency and move to another memberstate where the other non eu parent can reunite with them,If the Judge was happy to see genuine family been seperated
chen only applies 1.where the eu child tries to reside in a country other than the country of birth,there, it was irish citizen in the uk.2.the parents in chen were self sufficient. chen was not applicable in dereci. the ecj was only obliged to answer specfic questions put to it and not act as an advisory to the applicants. chen is a very limited case like zambrano is.Morrisj wrote:legal ground to support my case?What a dream,you are really in a world of illusion,get back to your senses.Back to my question and dont play smart,diverting from my question.Yes zambrano applies 100% if both parents are non eu,now to make it simple why didnt the Ecj Judge say one of the parents(both non eu)should stay with the child and use CHEN (getting residency and move to another memberstate where the other non eu parent can reunite with them,If the Judge was happy to see genuine family been seperated
Chen: Yes, that is the correct understanding of Chen. As for the practical realities of Chen, you are correct, many parents won't be able to rely upon it, hence why I say it is limited. It was a once off. It has rarely being cited by domestic courts (no surprise really - but UK Tribunals have cited it regularly) or ECJ. It's similarity with a requirement of an Union needing to get work, yes, I suppose it is similar. After all, Article 7 of the directive provides it as another example of exercising eu rights.Morrisj wrote:@Wals please correct me if i am wrong. CHEN-The non eu parent can exercise the child's right by moving to another memberstate and on the basis of the child and self sufficiency(1 of the 3 qualifications) but as we both know thats unlikely possible for the non eu parent,This is not different from the case where a union citizen is required to move to another memberstate to get a job or become self sufficient.You need to go back to High School to learn what depriving a child means
Before you start lecturing on a point that NO BODY is disputing, Read what I have said earlier. I have said, and will say again, The EU have a separate treaty with Turkish Nationals. Very few of you are Turkish Nationals. That part of the Dereci case has absolutely no relevance to you lot. There were 3 others that were linked to the preliminary reference. The reference to Dereci is only shorthand instead of having to type out all the names of the parties involved in the case.Morrisj wrote:While waiting for you to answer my previous question,I just thought i should lecture you properly.Mr Dereci's was differentiated from other çases-First of all,mr dereci was not an alien(third country national).Referrimg to (para.76-96) The judge stated,the law on aliens were applicable to the provisions on Turkish and Mr dereci had made use of of his freedom to establish by his marriage before NAG came in force(no diff.with the policy on romanians).Now one big question,were the other couples not married?
Zambrano paid considerable attention to the parent's position, and the unliklihood of them being able to return to Columbia. They noted the possibility of the child having Columbian nationality and accepted that they could not return, because, all though they did not get refugee status, the Belgians accepted that it was not safe for them, but left them in limbo. It may have been a different story if the Court accepted that the child could have a safe and decent living in the parents country and that the child was entitled to Columbian nationality. They might have accept that the interest of the child was not effected.Morrisj wrote:Zambrano-Ecj did not elaborate if one or both of the non eu parents can stay with the child,they rather took the best interest of the child to avoid second class Eu minors i.e Eu minors should not be deprived for any reason,regarding nationality and status of their parents.You need to stop criticising Alan Shatter cos he is as smart as Ecj,thus he said where there is intact relationship,there is a very little doubt the child is entitled to both parents.Ecj didnt say much about mr derec's Austrian kids
It shows that when the Members State went on to say that they hoped that EU citizenship was to be fundamental ........ (its even in the recital of 2004/38 EC Directive) they genuinely, in 1992, were not that serious. They clearly have a difference of opinion compared to the EU Court. They did not address the wave of movement by 3rd Country nationals in the past 15 years. I told you lot before in previous threads, most EU states don't really take the significance of Article 20 and 21 that seriously. I was abused for saying that.acme4242 wrote:The reality of Irish and EU law has played out to be absurd, unjust and unequal.
I fail to understand the logic of the Irish Dept of Justice and Equality that
leaves Irish Citizens second class.
I fail to understand the logic of the EU court, aiming at an internal market,
and completing it, while at the same time continuing to attach importance to the
crossing of internal national frontiers, is in itself contradictory.
The Dereci judgement in this context is also absurd. Two non-EU parents of an EU
child have the right to remain as a family unit, but a mixed EU and non-EU parents
of an EU child have no similar right, to remain as a family unit.
For them to at least see each other, must they split up, thus leaving the non-EU
parent the sole carer of the child.
The law has become an mule. and the Irish Dept of Justice and Equality are a fine example.
On the one hand attacking genuine family units with no negative immigration history,
and on the other hand completely ignoring and failing to prosecute and imprison fraudsters.
You never thought that I was good at EU law. Or have you just realised that you were wrong all along? It is likely you are wrong again.Morrisj wrote:@wals i thought you were good at eu law but you proved otherwise.Its completely waste of time exchanging words with you.Refering you to para 76-96 of the ''full Judgment on Dereci''(I mentioned full judgment cos am astonished you dont know what NAG means,perharps you have not read the judgment or your link is incomplete).Mr dereci was not classified as a third country national and if he won his case even when there is a strict policy(NAG)what about the other couples?Mr dereci's minor kids was his success