Problems with Directive 2004/38/EC implementation in Ireland

[acme4242]

I'm not sure if someone else already mentioned,
but there is a wee bit about this in the latest ICI News Bulletin

http://www.immigrantcouncil.ie/newslett ... .php?id=81

[quote]
New immigration policy will breach EU law
Senior Solicitor Hilkka Becker has written to the Minister for Justice and Law Reform, Dermot Ahern, to point out that a proposed change to administrative procedures by the Irish Naturalisation and Immigration Service (INIS) would result in Ireland breaching EU law. According to a notice on the INIS website, the Government intends, from June 1, to not allow the non-EU citizen family members of EU citizens to work or set up a business while their application for a residence card is being processed. Currently, this routinely takes six months.

Hilkka pointed out that this would breach EU Directive 2004/38/EC which states: “irrespective of nationality, the family members of a Union citizen who have the right of residence in a Member State shall be entitled to take up employment or self-employment thereâ€

[86ti]

An unemployed accession state citizen in Germany is illegal after three months.

As Union citizens they still have a right of residence. As long as they can support themselves (+health insurance=self-sufficient) they are 'legal'. Even if they couldn't comply with this they would not become 'illegal' just like the other EEA nationals. Only if they would become an 'unreasonable' burden to the state could this state take actions. By May 1, 2011 this will be history for the A8 nationals anyway. In 2012 also the A2 nationals (though it will take longer in Liechtenstein and Switzerland) will have full working rights.

[Ben]

And so the hole they are digging gets deeper. The FAQ page has been updated..

Q.9 Can I enter employment while my application is pending?

A No. From 1 June 2010 you may be issued with a Stamp 3 endorsement while your application is pending. Stamp 3 allows the holder permission to remain in the State for the specified period on condition that the holder does not enter employment, does not engage in business or profession and does not remain later than the specified date.

Please note, receipt of a Stamp 3 for this period is not an acknowledgment of having EU Treaty Rights. This will be determined in due course when your application will be either approved or refused.

Ignoring the rest..

Q.9 Can I enter employment while my application is pending?

A No.

^^ Illegal.

• Withdrawing the issuance of temporary Stamp 4 - not incompatible with the Directive.
• Issuing temporary Stamp 3 to a "beneficiary" - not incompatible with the Directive.
• Lying to a "family member" - stating to a person entitled to reside and work in Ireland that he does not, in fact, have that right - totally incompatible with the Directive.

I genuinely don't know what the DoJ intends to achieve by this blatent disregard for EC law. Perhaps they have actually gone mad this time.

[koded]

I begining to think they are trying to create an issue where they can make their case as regard to reforming of Eu Directive 2004/38/Ec. This is what they have been aspiring to do. But I think they are doing it in a wrong way.

Perhaps, with conservative in Uk in power then they will be expecting a backing from them.
Definitely the matter is going to court and which they will lose and I think they will want to challenge it in EU court of justice where they are expecting to make this as a matter arising from EU.

[Ben]

Interesting theory koded. It's certainly plausible.

[Obie]

It is important that they note that the conservative cannot change the EU rules. There are greater powers in Europe than the weak Lib-Con coalition in the UK.

The tories, unlike the Irish Government are pretty much aware of their boundry/remit. EU laws is beyond it. Certainly above their pay grade.

With all their talks about caps, they are very aware that it will not affect 80% of migration into the UK.

Surinder Singh judgement was passed when the tories were in power, baumbast , Akrich and Metock, Chen, during Labour.

Having a new government whether tories or labour, has no effect whatsoever on EU law.

In the end, ireland would be made to pay thousands of Euros in legal fees at the court, and they will be the loser as always.

For all the tories right wing tough talk, they have never once suggested they will seek changes to the EU directive or withdraw from the European Union.

They know it will be disasterous economically, not to mention the over 1 million Brits, who live in the European union.

Even the Danes, who appear the most anti-immigrant in europe at present, have accepted that directive 2004/38EC is here to stay.

[robby1]

hi ben,
you have answered my last posts about P.R card application , i applied in april for p r card for femily member of e u citizen on basis of 5 year residence with e u citizen in the state,D.O.J replied me with letter stating that we can not accept your application at this stage because you have received your eufam 4 card in january 2007 but it is open to you to apply six months prior to expiry of your eufam4 card ,i have received stamp 4 in the first year sep 2005 until sep 2006 but they are not counting this period towards P.R card application & you told me to contact solvit but would e u commision disscuss this problem with directive to irish authorities ? or is there any update on this .
thanks
regards
robby

[Ben]

hi ben,
you have answered my last posts about P.R card application , i applied in april for p r card for femily member of e u citizen on basis of 5 year residence with e u citizen in the state,D.O.J replied me with letter stating that we can not accept your application at this stage because you have received your eufam 4 card in january 2007 but it is open to you to apply six months prior to expiry of your eufam4 card ,i have received stamp 4 in the first year sep 2005 until sep 2006 but they are not counting this period towards P.R card application & you told me to contact solvit but would e u commision disscuss this problem with directive to irish authorities ? or is there any update on this .
thanks
regards
robby

1. Union citizens who have resided legally for a continuous period of five years in the host
Member State shall have the right of permanent residence there. This right shall not be subject to
the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and
have legally resided with the Union citizen in the host Member State for a continuous period of
five years.

Correctly transposed as..

Subject to paragraph (3) and Regulation 13, a person to whom these Regulations apply who
has resided in the State in conformity with these Regulations for a continuous period of 5 years may
remain permanently in the State.

The right of permanent residence is not dependant on the issuance, absence or expiry date of a Residence card of a family member of a Union citizen (Stamp 4 EUFam).

If you have contacted Solvit but your rights remain infringed, I would personally recommend that you make a complaint to the European Commission (email address: sg-plaintes@ec.europa.eu).

Incidentally, what did Solvit say?

[walrusgumble]

hi ben,
you have answered my last posts about P.R card application , i applied in april for p r card for femily member of e u citizen on basis of 5 year residence with e u citizen in the state,D.O.J replied me with letter stating that we can not accept your application at this stage because you have received your eufam 4 card in january 2007 but it is open to you to apply six months prior to expiry of your eufam4 card ,i have received stamp 4 in the first year sep 2005 until sep 2006 but they are not counting this period towards P.R card application & you told me to contact solvit but would e u commision disscuss this problem with directive to irish authorities ? or is there any update on this .
thanks
regards
robby

1. Union citizens who have resided legally for a continuous period of five years in the host
Member State shall have the right of permanent residence there. This right shall not be subject to
the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and
have legally resided with the Union citizen in the host Member State for a continuous period of
five years.

Correctly transposed as..

Subject to paragraph (3) and Regulation 13, a person to whom these Regulations apply who
has resided in the State in conformity with these Regulations for a continuous period of 5 years may
remain permanently in the State.

The right of permanent residence is not dependant on the issuance, absence or expiry date of a Residence card of a family member of a Union citizen (Stamp 4 EUFam).

If you have contacted Solvit but your rights remain infringed, I would personally recommend that you make a complaint to the European Commission (email address: sg-plaintes@ec.europa.eu).

Incidentally, what did Solvit say?

digging another hole, the Irish State making out, oh we can't do this because this legislation (their legislation to tranpose a 2004 directive) only came into domestic law in 2006. Pure and bloody chancers

there are a number of provisions that deal with what happens if there is a gap in time for pr, but is mere residency enough? the preamble requires continous "legal residency" and the provision your stated requires you to be "in comformity" with the directive, eg Artilce 7 (this is, in order to achieve the chance to be entitled to it, and not once you actually get pr)

but ye, residency card, sure the gobsheens in the GNIB and Dept could feck that up. so long as their is evidence of exercising rights for the 5 years, then there would be nothing the minister could do to prevent entitlement to pr. once that is achieved, happy days, you are not required to be considered under article 7

[Ben]

digging another hole, the Irish State making out, oh we can't do this because this legislation (their legislation to tranpose a 2004 directive) only came into domestic law in 2006. Pure and bloody chancers

Pathetic, isn't it.

[robby1]

thanks ben,
no i have not contacted solvit yet , i am waiting for september, i will have 5 year continous residence in sep 2010,i will contact solvit or go through my solicitor in september ,hopefully e u will direct to D.O.J to rectify problems with directive .
thanks
regards
robby1