Upon arrival in the State, a family member of an EU citizen (resident in Ireland and exercising treaty rights), received an endorsement in their passport which explicitly forbade employment. The family member was unable to submit their EU1 application until after three months from their arrival in Ireland. Once submitted, and in accordance with the Directive, EU1 applications take up to six months to process. The family member's permission to remain in Ireland (awarded by the GNIB), for the duration of these nine months, was on a Stamp 3 basis (no work, no study).
I contacted Rahim O'Neill, of the EU Treaty Rights Section, Department of Justice, to see what he had to say on the matter:
From: benifa<benifa>
To: RKONeill@justice.ie
Sent: 05/07/2008 21:03
Subject: 7(1)(a) of SI 656 of 2006
Dear Rahim O'Neill,
My name is <benifa>. I am a citizen of the United Kingdom, living
and working in Ireland. I write with the intention of obtaining
clarification of section 7(1)(a) of Statutory Instrument 656 of 2006.
For the benefit of those parties cc'd into this email, section 7(1)(a) of
Statutory Instrument 656 of 2006 (European Directive 2004/38/EC, transposed into Irish law) states, "A family member of a Union citizen who is not a national of a Member State and who has been resident in the State for not less than 3 months shall apply to the Minister for a residence card." The EU Treaty Rights section of the Department of Justice, Equality & Law Reform in Ireland, is currently referring to this text when rejecting Residence Card applications from non-EU family members of EU citizens, who apply for a Residence Card within three months of arrival in the State, in accordance with Directive 2004/38/EC.
Recently, a non-EU family member of mine has joined me in Ireland. In
accordance with Directive 2004/38/EC, no registration of EU citizens or
their family members is required, should they intend to be resident for
less than three months in a Member State.
However, should their intended stay be longer than three months,
application for a Residence Card should be made to the relevant in
authority within the host Member State.
To this end, an application using form EU1 was made by my family member, shortly after her arrival in Ireland, to the EU Treaty Rights section of the Department of Justice, Equality and Law Reform, in Dublin.
A few days later, the application was returned to us by the Department of
Justice. The letter that accompanied the returned application quoted
section 7(1)(a) of SI 656 of 2006 as the reason for rejection. My family
member was informed in this letter that should she wish to re-apply for a
Residence Card, she should do so only after she has acquired three months of legal residency in Ireland.
Aside from the issue of section 7(1)(a) of SI 656 of 2006 being in clear
contravention of the spirit of Directive 2004/38/EC, it is, apparently,
somewhat illogical. Family members of EU citizens who are exercising
Treaty rights in Ireland, are required to apply for a Residence Card should
they intend to reside for longer than three months. To quote Article 9
from Directive 2004/38/EC:
"1.. Member States shall issue a residence card to family members of a
Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.
2. The deadline for submitting the residence card application may not be
less than three months from the date of arrival.
3. Failure to comply with the requirement to apply for a residence card
may make the person concerned liable to proportionate and non-discriminatory sanctions."
I understand that the deadline for submitting the Residence Card
application may not be less than three months from the date of arrival.
However, failing to apply for a Residence Card within this time may make my family member liable to proportionate and non-discriminatory sanctions. It is unreasonable that the Department of Justice reject applications that are submitted within three months of the applicant's arrival in the State, simply because it's submission is before the three month deadline. It is my opinion that the intention behind section 7(1)(a) of SI 656 of 2006 is a stalling tactic by the Department of Justice, in order to unnecessarily delay the issuance of a Residence Card for the non-EU family member of an EU citizen, which, of course, can be used to evidence the holder's right to reside and work in the state.
My other concern, is that my family member was issued with a visitor's
stamp in her passport, at the point of entry to Ireland, valid for three
months. Should my family member submit an application for a Residence Card after she has acquired three months residency in Ireland, in accordance with section 7(1)(a) of SI 656 of 2006, she would be doing while having the status of an overstayer (in the eyes of Irish law), since her Visitors stamp in her passport would have expired by that time. There seems to be no provision in SI 656 of 2006, therefore, to avoid non-EU family members of EU citizens from unwillingly falling into an irregular immigration status.
Therefore, I ask, respectfully, for clarification of section 7(1)(a) of SI
656 of 2006, and the reason behind the Department of Justice's decision to reject EU1 applications from family members who apply within three months of arrival in the State, requesting instead that the applicant re-apply only after acquiring three month's residency in Ireland. I know of no other EU Member States that practise this.
I look forward to your reply.
Regards,
<benifa>.
From: Rahim K. O'Neill <RKONeill@justice..ie>
To: benifa <benifa>
Sent: Monday, 7 July, 2008 7:24:25 AM
Subject: Re: 7(1)(a) of SI 656 of 2006
Dear <benifa>,
I refer to your attached email regarding the application of Reg. 7(1) of SI
656 of 2006.
As is clear from the regulation and it's equivalent in Article 9 in EU
Directive 2004/38/EC, applications for residence cards under the Directive,
(ie EUFam Cards), cannot be made within 3 months of arrival and the
Department is acting in accordance with the Regulations and the Directive
when accepting/rejecting applications.
Although applicants and their EU family member can reside in the state up
to 3 months in accordance with the Regulations and Directive, there is a
facility in place whereby they can register with GNIB for a 3 month "stamp
3" (dependent status) residence card that aids applicants in evidencing
their stay for this initial period. Applicants are similarly allowed to
remain for the duration of their application for an EUFam card and their is
also a facility in place to register for up to six months on a stamp 3 for
this period.
Your family member is free to re-apply on completion of 3 months residency
in the State.
Regards,
Rahim O'Neill
EU Treaty Rights Section
Dept. Of Justice, Equality and Law Reform
An Roinn Dli & Cirt, Comhionannais & Athchóirthe Dli
13/14 Burgh Quay/ 13/14 Cé Burgh
Dublin 2/ Baile Atha Cliath 2
Ireland/ Éire
Phone/Fón: +353 1 6168032
Fax/Fasc: +353 1 6167850
From: benifa <benifa>
To: "Rahim K. O'Neill" <RKONeill@justice.ie>
Sent: 07/07/2008 15:14
Subject: Re: 7(1)(a) of SI 656 of 2006
Dear Rahim O'Neill,
Thank you for your prompt reply to my email.
However, what you have mentioned is of great concern.
Specifically, you state, "As is clear from the regulation and it's
equivalent in Article 9 in EU Directive 2004/38/EC, applications for
residence cards under the Directive, (ie EUFam Cards), cannot be made
within 3 months of arrival..".
Article 9 of Directive 2004/38/EC does not indicate any prohibition of
application within three months of arrival in the host Member State. It
merely states (in paragraph 2), that the deadline for submitting the
residence card application may not be less than three months from the date
of arrival. Should an application be submitted within three months, there
is no prohibition of this, and the Department of Justice should process
such an application as normal, providing a decision within six months of
receipt.
You also state, "Although applicants and their EU family member can reside
in the state up to 3 months in accordance with the Regulations and
Directive, there is a facility in place whereby they can register with GNIB
for a 3 month "stamp 3" (dependent status) residence card that aids
applicants in evidencing their stay for this initial period. Applicants are
similarly allowed to remain for the duration of their application for an
EUFam card and their is also a facility in place to register for up to six
months on a stamp 3 for this period."
As you are aware, in accordance with Directive 2004/38/EC, the family
member of an EU citizen (who is exercising EU Treaty rights in Ireland) has
the right to reside with the EU citizen, as well as having the right to
seek employment. These rights are acquired automatically, by nature of
their status of family member of an EU citizen (who is exercising EU Treaty
rights), and not attained by the possession of a Residence Card (of any
kind). I would like to know how the Department of Justice recommends that
such a family member may evidence his/her rights of residence and
employment to a prospective employer, before the issuance of a Stamp 4
EUFam Residence Card, keeping in mind the such family member has the right
to reside and work from the moment of entering the state, either in the
company of, or to join, the EU citizen of which he/she is a family member.
Regarding the initial issue concerning section 7(1)(a) of Statutory
Instrument 656 of 2006, I would like to make it clear that if the
Department of Justice continues to maintain this inaccurate interpretation
of Article 9 of Directive 2004/38/EC, I shall have no option but to
initiate a formal complaint against the Republic of Ireland to the
Secretary-General of the Commission of the European Communities.
I look forward to your reply.
Regards,
<benifa>.
From: Rahim K. O'Neill <RKONeill@justice.ie>
To: benifa <benifa>
Sent: Tuesday, 8 July, 2008 5:02:56 AM
Subject: Re: 7(1)(a) of SI 656 of 2006
Dear <benifa>,
I refer to your email, attached.
It is the position of the Department that Article 9 of EU Directive
2004/38/EC clearly sets out that an application may not be made in the
first 3 months of residence in the State. As we work under the Directive,
it follows that we can not accept applications made before this deadline.
By analogy, had the Directive indicated that applications could not be made
after 3 months, we would not accept any applications outside of that
deadline.
Furthermore, although the rights afforded by the Directive on EU nationals
and their family members are generally intrinsic, it still needs to be
established to the satisfaction of the competent authorities in the host
member state that applicants do in fact fall under the remit of the
Directive. These rights can be established by an administrative process
such as the EU1 application process. Again by analogy, a person's
nationality may be a right by birth, but in order to travel internationally
the same person will need to apply for a passport etc. There is no
contradiction between having rights and entitlements and the need to
establish them through an administrative process.
I hope this has clarified our position for you.
Regards,
Rahim O'Neill
EU Treaty Rights Section
Dept. Of Justice, Equality and Law Reform
An Roinn Dli & Cirt, Comhionannais & Athchóirthe Dli
13/14 Burgh Quay/ 13/14 Cé Burgh
Dublin 2/ Baile Atha Cliath 2
Ireland/ Éire
Phone/Fón: +353 1 6168032
Fax/Fasc: +353 1 6167850
From: benifa <benifa>
To: Rahim K. O'Neill <RKONeill@justice.ie>
Cc: Chris.Korcz@berr.gsi.gov.uk; InternalMarket@entemp.ie
Sent: Thursday, 10 July, 2008 12:53:25 PM
Subject: Re: 7(1)(a) of SI 656 of 2006
Dear Rahim O'Neill,
Thank you for your email.
Yesterday, my family member and I visited our local GNIB representative (Waterford Garda Station), and my family member obtained residency under Stamp 3 conditions, valid for three months. In addition, the GNIB officer stamped my family member's passport, stating explicitly that my family member has no right to seek employment in the state.
As you know, such prohibition is in direct contravention of the rights of such family members, in accordance with EU Directive 2004/38/EC.
In your recent email to me, you used the analogy of a person requiring a passport in order to travel, even though their right to travel already exists. You used this analogy to illustrate that administrative processes must be completed in order to verify an applicant's eligibility for that which he applies. However, EU Directive 2004/38/EC provides the family member of an EU citizen (who is exercising Treaty rights), with the right to reside and work. This right is not provided by the issuance of a Residence Card by the relevant authority in the host Member State. Keeping reference to your analogy, I would like to point out that many countries, including Ireland, provide a "same-day" facility for passport applicants, which may be utilised where necessary. The Department of Justice provides no facility to assist family members of an EU citizen to provide evidence of their residence and employment rights, until at least nine months after entry into the state. Moreover, the Department of Justice explicitly prohibits such family members from exercising their right to seek employment, by endorsing such prohibition in their passport.
EU Directive 2004/38/EC confirms the existing right of residence and employment, of an EU citizen and his/her family members. An application for a Residence Card is intended to allow the citizen and his/her family members, to provide evidence that they are eligible, that they satisfy the conditions of Article 7 of the Directive. However, the Residence Card itself does not provide the citizen and his/her family members with the right to reside and work - these rights are provided by the Directive and the EC Treaty. Therefore, while processing takes place, and unless the decision is made at the end of the process that there are grounds for refusal of the application, there are no implications regarding residency or employment for the EU citizen and his/her family members during this time.
To issue Stamp 3 to family members of an EU citizen, together with a passport endorsement which prohibits employment, is to deprive the family member from exercising his/her right to seek employment, in accordance with EU Directive 2004/38/EC. The correct type of Residence Card to issue such family members, would be Stamp 4 EUFam (which, as you know, permits employment) - with validity until the deadline to process the applicant's EU1 application (six months from submission). Upon expiration, another Stamp 4 EUFam Residence Card should then be issued, with validity of 5 years (assuming there are no grounds for refusal of the family member's application).
Copied into this email is the UK Solvit Centre and, specifically, Christine Korcz.
I look forward to hearing from you.
Regards,
<benifa>.
From: benifa <benifa>
To: Rahim K. O'Neill <RKONeill@justice.ie>; Chris.Korcz@berr.gsi.gov.uk; InternalMarket@entemp.ie
Sent: Thursday, 24 July, 2008 1:39:21 PM
Subject: Re: 7(1)(a) of SI 656 of 2006
For the attention of:
Rahim O'Neill of the Irish Department of Justice,
The representatives of the UK and Ireland Solvit Centres.
Please provide an update to my query, as detailed in the email trail below.
In short, my family member is currently in a position where she has been prohibited by the Irish Department of Justice from being employed, irrespective of the rights held by my family member, in accordance with EU Directive 2004/38/EC.
Due to Section 7(1)(a) of Irish Statutory Instrument 656 of 2006, the Department of Justice have refused to accept a residence card application from my family member, until she has firstly acquired three months residency in the State. The Department of Justice are then expected to take six months to process the residence card application (in accordance with Directive 2004/38/EC). The result is that my family member will remain prohibited by the Department of Justice, from being employed, for a total period of nine months.
To prohibit a family member from exercising their right to be employed in the State, in accordance with Directive 2004/38/EC, by endorsing such prohibition in the family member's passport, is in direct contravention of Directive 2004/38/EC and will result in a compensation claim, through the courts, for loss of earnings. Such a claim is likely to exceed €13,000, plus costs.
I hope that the severity of this matter is appreciated and escalated accordingly.
Thank you for your time.
Regards,
<benifa>
I did not receive any further response from Rahim O'Neill, nor any other representative of the Department of Justice, nor the Irish Solvit Centre, nor the UK Solvit centre.
O'Neill's responses, as can be seen, are wriggly to say the least. He dodges the issues and uses inappropriate analogies, in an attempt to justify his (the DoJ's) bizarre interpretation of Directive 2004/38/EC.
I made a complaint to the Secretary-General of the Commission of the European Communities, which was made formal. You can read the response to my complaint here.
Today, I am very pleased indeed, to see that the DoJ have now stopped this practice of prohibiting employment to those entitled, and have the following addition on the INIS website:
Granting temporary Stamp 4 (pending the outcome of an EU1 application), instead of Stamp 3, was precisely the idea I put forward to Rahim O'Neill (though, of course, it is the only legal option). Wonder what he would have to say now?13. Q Can I enter employment while my application is pending?
A If you have an application pending, you and your EU national family member can bring your:
* EU Treaty Rights application acknowledgment,
* Passport,
* Passport/ID of your EU national family member,
* Evidence of your relationship with your EU national family member
to your local Immigration Officer who may provide you with a 'Stamp 4' endorsement in your passport that is valid strictly for the period of your application, i.e. 6 months maximum.
This would enable you to enter employment for this period. Please note, receipt of a 'Stamp 4' 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.