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Moderators: Casa, Amber, archigabe, batleykhan, ca.funke, ChetanOjha, EUsmileWEallsmile, JAJ, John, Obie, push, geriatrix, vinny, CR001, zimba, meself2, Administrator
walrusgumble wrote: Apologies,
If the State did not bring it up, I certainly shouldn't have. Except for the Irish Times report, I don't know the circumstances of the case.
However,it is very difficult for me to see any justification for arresting, possibly imprisioning and subsequently deporting an undocumented resident under the circumstances outlined.
I take you think the State will appeal to he Supreme Court. On what grounds? I realise it would be speculation, but I would be interested to know what you think.Rip v Winkle wrote:I completely agree with Walrusgumble on this. the discussion has degenerated into a very nasty form of internet pingpong.
The case itself is interesting.
There seems to be strong circumstantial evidence of a sham "marriage", not to mention the the moral implications of possibly having child for this purpose.
However, the Judge has (presumably) applied the law as it stands. If we as a State feel that the law needs changing (and I think Justice Hogan strongly implied that it does last March), then the Minister should have new laws drafted.
He might consider clarifying immigration legisation at the same time. The rules are far too vague and the INIS is a nightmare. Franz Kafka springs to mind.There is a difference between coming to Ireland and already being pregnant, and another to actually become pregnant with a partner, who is undisputely together.There was no issue of "sham marriages" in the case that you referred to. You should not make such comments if you never read what Hogan J actually said or what the State claimed.
The Judge based it on Irish law. The "present status quo" under Irish Law, has been assumed to be Lobe. While that might be so, the State have on a continous basis applied Lobe as a carte blanche in ALL subsequent cases, even if the FACTS of the case are almost identical to Fajunonu. The cases of Dimbo removed some of the veener in Lobe.
It is no surprise that Hogan J came to the conclusion that he did, he has made his views clear in his writings and has been the leading barrister in most of the IBC cases, including, I believe, the Lobe case.
It was easy for the judge to come to this conclusion, in light of Judicial Review, because the Minister failed to properly analysis the couples case. It is not enough, simply to make a few bland sentences to properly consider that persons case. It goes beyond, in some ways, in light of facts of the cases, of old ECtHR cases (that accepted that even EU citizens may have to relocate if they want to be united, if insurmountable obstacles are not present - makes relationship with EU law all the more interesting, in light of Lisbon. Irrespective, Zambrano would be relevant if it was considered, Dercie taken aside.
Had the Minister (old Minister) made properly analysis, it would be difficult to see a judge being able to over rule it. I won't be surprised if this is appealed. Though, depending on the State's interpretation of Zambrano, that might not happen. It is odd, Zambrano was not expressed in the Judgment.
The Immigration Bill has had some "fun" times in the past 2-5 years. I don't see a whole lot of change if enacted, bar it will be in writing. Despite Shatter's comments as an opposition Minister, I can't see the government will reduce Ministerial discretion, as they need to deal with whatever new issues emerge, as amending legislation takes time.
Reform is definitely needed.
Yes I know, but if I was Chinese or other Asians etc I would not be laughing about the fact that they are loaning EU money, they won't get it back.IQU wrote:china and india will be the next world power.i am just laughing at irish tom not to europe recession ok.i think you quite didnot understand my last 3 posts.
They won't get it back? Funny that, the loan process involves a contract as you would know. I understand they might not pay back monetarily because of the convoluted nature of the EU and I think the Chinese know this already. However, the EU would have to make concessions in terms of Chinese access to the EU market that would benefit Chinese businesses.walrusgumble wrote:Yes I know, but if I was Chinese or other Asians etc I would not be laughing about the fact that they are loaning EU money, they won't get it back.IQU wrote:china and india will be the next world power.i am just laughing at irish tom not to europe recession ok.i think you quite didnot understand my last 3 posts.
good point.chinese business is already expanding into europe though. what type of concessions do you reckon?there is no way germany will allow china to threaten its interests either.they will put "human rights barriers" against them if it suits them.Regulator56 wrote:They won't get it back? Funny that, the loan process involves a contract as you would know. I understand they might not pay back monetarily because of the convoluted nature of the EU and I think the Chinese know this already. However, the EU would have to make concessions in terms of Chinese access to the EU market that would benefit Chinese businesses.walrusgumble wrote:Yes I know, but if I was Chinese or other Asians etc I would not be laughing about the fact that they are loaning EU money, they won't get it back.IQU wrote:china and india will be the next world power.i am just laughing at irish tom not to europe recession ok.i think you quite didnot understand my last 3 posts.
You are quite correct that Chinese human rights could be a tool for the EU but I really doubt that is a viable tool in the short term at least if it would ever be. China is not Iran or Syria that the EU can impose sanctions on at will without consequences- most European businesses depend on the Chinese supply chain machine to survive.walrusgumble wrote:good point.chinese business is already expanding into europe though. what type of concessions do you reckon?there is no way germany will allow china to threaten its interests either.they will put "human rights barriers" against them if it suits them.Regulator56 wrote:They won't get it back? Funny that, the loan process involves a contract as you would know. I understand they might not pay back monetarily because of the convoluted nature of the EU and I think the Chinese know this already. However, the EU would have to make concessions in terms of Chinese access to the EU market that would benefit Chinese businesses.walrusgumble wrote:Yes I know, but if I was Chinese or other Asians etc I would not be laughing about the fact that they are loaning EU money, they won't get it back.IQU wrote:china and india will be the next world power.i am just laughing at irish tom not to europe recession ok.i think you quite didnot understand my last 3 posts.
walrusgumble wrote:Dercei
http://curia.europa.eu/jurisp/cgi-bin/f ... mit=Submit
On those grounds, the Court (Grand Chamber) hereby rules:
1. European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.
2. Article 41(1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, must be interpreted as meaning that the enactment of new legislation more restrictive that the previous legislation, which, for its part, relaxed earlier legislation concerning the conditions for the exercise of the freedom of establishment of Turkish nationals at the time of the entry into force of that protocol in the Member State concerned must be considered to be a ‘new restriction’ within the meaning of that provision.
[Signatures]
walrusgumble wrote:zambrano will not help non eu parent, if the child and other parent are eu citizen born n resident in that country , eg irish citizen and always live in ireland.the focus then shifts to eu parent not child.zambrano is last resort.remember the tiny qualification in mccarty regarding zambrano.if somehow,eu parent cant live in elsewhere in europe which is unlikely,things might be different.this should not effect both parents if both are non eu. expect another case before the courts. zambrano allows non eu parent(s) stay in country of citizen child (so long as parent is not a citizen of that child and never left that country)
walrusgumble wrote:its a good job the high court in the original discussion did not look at eu law,because if they did decerci would apply and might not save the couple.echr is not very strong on this either.it may all fall down to shatter not appealing cause Supreme court,depending which judges sit,could go anyway.But Judges are very annoyed with Shatter,so they might rule in favour of the couple in spite,cause case law is not postive
Yes, the case that was reported in the Irish Times, the topic of this thread.Regulator56 wrote:walrusgumble wrote:its a good job the high court in the original discussion did not look at eu law,because if they did decerci would apply and might not save the couple.echr is not very strong on this either.it may all fall down to shatter not appealing cause Supreme court,depending which judges sit,could go anyway.But Judges are very annoyed with Shatter,so they might rule in favour of the couple in spite,cause case law is not postive
What case are referring to? The Nigerian asylum seeker married to an Irish man with an Irish child?
I meant that it is likely that the family would be considered on the basis of the activity of the German first. The focus shifts to her. Zambrano might apply if she no longer complied with Directive 2004/38 , technically she is "illegal" (even that is a grey matter in Europe, technically you can be asked to leave, but there are issues there, note the British and their dealings with Romas)Regulator56 wrote:
I gave a specific analogy earlier whereby a German/American couple have Irish children in Ireland, it would oppose the Zambrano ruling if the American is not allowed residence based on the Zambrano criteria. I disagree that the Zambrano ruling is binding only if both parents are non-EU nationals....well unless I am mistaken.
If the Child is Irish and the father is Irish? Living in Ireland? I see where you are going on that. I reckon Derecei will still apply. Could be wrong to be honest, but Derecei should make no difference between mother and father, but, its a good argument I guess. I think in Dereci , the EU parent was the Mother.dalebutt wrote:What about in cases where one of the parent is Irish and the child qualifies to be Irish on the basis of say the dad's citizenship whereas the mum is an illegal alien would Zambrano not apply for the mum to qualify for residence. Would it be said that because one of the parents is EU citizen the child would not have to leave the state. am not really clear about this rullings
If you mean that you thought the spirit of Zambrano applies to all EU children and their family, then yes, Zambrano is weakened by McCarthy and Derecidalebutt wrote:Yes am clear now. That means this Dereci Judgement weakens Zambrano as i was viewing the spirit attached to Zambrano initially. So it all boils down to national courts determining if the third country national should remain with their child in the state?
They applied Derecidalebutt wrote:Am saying this because UKBA wrote to my friend on tuesday, he is a Ghanian albeit not married but had a child and living together with his British partner thus their daughter is British. though he hasnt been working, the partner has been sponsoring the family all along. UKBA says because the child is not econimically dependent on him he would not qualify under Zambrano rulling because the mum is economically active and they do not see why his living the state would make the child leave the state or affect the child in anyway.
Obie wrote:The case you cited above was not a reported case, and therefore it cannot be used as a precedent before the courts.
In the UK, the mostly used case is ZH Tanzania
Dereci case is a bit complex, the court dealt with Mr Dereci's case as the spouse of an Austrian Citizen rather that the father of a minor EU citizen child. The answers were vague and open to various interpretations. It sort of imposes an obligation on memberstate to address article 8 or Article 7, which is quite innovative. Mr Dereci did eventually won under the Ankara Agreement signed between Turkey and the European Union, but the court did not preclude the fact that other family members in that case will succeed under Article 8 or other European instrument like Article 7 of the Charter of Fundamental rights.