The Department of Justice has recently released a document entitled "Explanatory Leaflet for FORM EU1", which is dated 27/04/2010 and is available for download on this website. The purpose of the Explanatory Leaflet seems to be to assist completion of form EU1 - application for a "Residence card of a family member of a Union citizen".
There are multiple problems with this Explanatory Leaflet.
- Section 5 of the Explanatory Leaflet is entitled "Immigration status during application process" and says,
"Subject to consideration of your initial application, you may be provided with a Stamp 3 endorsement on your passport which is valid for the period of the application process only, i.e. a maximum of 6 months. This would enable you to remain in the State during this period on condition that you do not enter into employment or engage in business in the State. Please note that receipt of this Stamp 3 endorsement is not an acknowledgement of an entitlement under EU Treaty Rights. This will be determined in due course when your application is either approved or refused."
For a "family member" (as defined in § 2(2) of Directive 2004/38/EC), this is unlawful. The issuance of "Stamp 3", as is described in the Explanatory Leaflet, causes to be endorsed in the person's passport a stamp which states that the holder is not permitted to engage in employment in the state. This means that the Department of Justice is seeking to remove the right to work of a person described in § 2(2) of Directive 2004/38/EC for a period of up to six months (until the issuance of the "Residence card of a family member of a Union citizen"). This is incompatible with Directive 2004/38/EC which clearly defines the right of residence of the family member of an EU national as being derived from the family member's relationship to an EU national who is exercising his right to move an reside in the territory of another Member State. The right of residence of the family member of an EU national is not conditional on the issuance of a document by the host Member State.
This is clarified by the European Commission in this document: "Community legislation no longer obliges third country family members to obtain any kind of residence permits in order to reflect the fact that you have the right of residence because you meet the conditions and not because the host Member State “permittedâ€