DOJ refusing EU Treaty Rights because of Dual Citizenship!!!

[Monifé]

As always, there are quite a number of EU Treaty Rights cases requiring urgent attention. A number of refusals have issued recently from the Department in respect of applications for residence cards of the spouses of EU nationals who are properly exercising their EU Treaty Rights in the State. The grounds for refusal are that the EU nationals in the cases have dual Irish and European citizenship, and therefore, according to the Department, cannot rely on the benefits of the Free Movement of Persons law. I do not accept the lawfulness of this position, and think that we may need clarification of the High Court. We are currently seeking further advice on the point.

The above piece is an extract from a monthly newsletter from Brophy Solicitors.

I am completely dumbfounded at this. Why are the DOJ infringing peoples rights once again.

This seriously worries me as my partners application is in that category as I am a dual Irish/British citizen.

[John]

This is probably not a comment you want to read, but if the Surinder Singh principle is not being used, might the Irish Government have a point?

But is Surinder Singh in play for you? Has your spouse exercised Treaty Rights in another EEA country? If yes, were they employed or self-employed?

There are many aspects of the EU Directive that are not clear, and I think this point is one of them.

[86ti]

This is probably not a comment you want to read, but if the Surinder Singh principle is not being used, might the Irish Government have a point?

The Austrian Court of Administration (link to a forum in German) has established that dual nationals (British-Austrian in the particular case) can profit from EU law just like single nationals by referring to the case Garcia Avello. If I remember correctly there are other ECJ cases dealing with dual nationality. I hope someone more knowledgable can shed more light on this.

[Monifé]

This is probably not a comment you want to read, but if the Surinder Singh principle is not being used, might the Irish Government have a point?

But is Surinder Singh in play for you? Has your spouse exercised Treaty Rights in another EEA country? If yes, were they employed or self-employed?

There are many aspects of the EU Directive that are not clear, and I think this point is one of them.

I am the EU national. We are not using the Surinder Singh principle. I am just a dual citizen, Irish and British.

I was under the impression, from other knowledgable users of this board, that as a dual citizen, you are afforded the same rights as an EU citizen living in Ireland, and that once you are exercising your treaty rights you can base your application on your EU (not Irish) citizenship.

The reason we are not going the Irish national route is that negative immigration history can be used against your application and also, we are not married yet, we are engaged, so our application is based on his relationship to me, durable and duly attested.

Plan B could be moving to the North and returning using Surinder Singh on the basis of my Irish citizenship, but that would mean up and leave everything including my job, which are hard to come by these days in Ireland.

[Monifé]

The Austrian Court of Administration (link to a forum in German) has established that dual nationals (British-Austrian in the particular case) can profit from EU law just like single nationals by referring to the case Garcia Avello. If I remember correctly there are other ECJ cases dealing with dual nationality. I hope someone more knowledgable can shed more light on this.

I thought there was cases regarding that. Thanks for the info 86ti. Would love to read that although I don't know German. I think I remember someone on this board saying that there was a Spanish case also.

I just hope someone challenges this in court soon, and then the DOJ can get another hard slap on the wrist.

I just don't understand why they afford less rights to their own citizens.

I wish something could be done about it!

[86ti]

Plan B could be moving to the North and returning using Surinder Singh on the basis of my Irish citizenship, but that would mean up and leave everything including my job, which are hard to come by these days in Ireland.

Look at vinny's comment in this thread.

[John]

Would love to read that although I don't know German

Why not use the Google translate facility, which appears automatically if you are using the excellent Google Chrome browser.

But do appreciate that it is "only" a judgement of the Austrian Court. Now if anyone can provide a relevant link to a judgement of the ECJ, now that would be really useful.

[acme4242]

This is over and done, the ECJ already ruled. Its already law.
What on Gods earth do the dept think they are doing.

http://curia.europa.eu/jurisp/cgi-bin/f ... f=C-148/02

This ECJ ruling means, if you have Dual EU Citizenship you can benifit
from EU Treaty rights, even in the country of your birth and
citizenship,
You do not need to have exercised freedom of movement by living in the other EU state

Summary of the Judgment
:
Such a link with Community law does, however, exist in regard to
persons in a situation such as that of a national of one Member
State who is lawfully resident in the territory of another Member
State. That conclusion cannot be invalidated by the fact that the
persons concerned also have the nationality of the Member State in
which they have been resident since their birth and which, according
to the authorities of that State, is by virtue of that fact the only
nationality recognised by the latter. It is not permissible for a
Member State to restrict the effects of the grant of the nationality
of another Member State by imposing an additional condition for
recognition of that nationality with a view to the exercise of the
fundamental freedoms provided for in the Treaty.

27.
Such a link with Community law does, however, exist in regard to persons in a situation such as that of the children of Mr Garcia Avello, who are nationals of one Member State lawfully resident in the territory of another Member State.

28.
That conclusion cannot be invalidated by the fact that the children involved in the main proceedings also have the nationality of the Member State in which they have been resident since their birth and which, according to the authorities of that State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty (see in particular, to that effect, Case C-369/90 Micheletti and Others [1992] ECR I-4239, paragraph 10). Furthermore, Article 3 of the Hague Convention, on which the Kingdom of Belgium relies in recognising only the nationality of the forum where there are several nationalities, one of which is Belgian, does not impose an obligation but simply provides an option for the contracting parties to give priority to that nationality over any other.

[John]

acme4242, how does that case help? It is about a change of surname and as far as I can see there is no mention of use of Treaty Rights as we are thinking about them here.

Struggling to understand its relevance.

[acme4242]

acme4242, how does that case help? It is about a change of surname and as far as I can see there is no mention of use of Treaty Rights as we are thinking about them here.

Struggling to understand its relevance.

Its a point of law concerning dual citizens and their right to claim
EU Treaty Rights in the country of their birth and their only residence.
The ECJ ruled they can.

That the dispute was over naming of children or deportation does not matter.
Either you can claim treaty rights or you can't

[Monifé]

Would love to read that although I don't know German

Why not use the Google translate facility, which appears automatically if you are using the excellent Google Chrome browser.

But do appreciate that it is "only" a judgement of the Austrian Court. Now if anyone can provide a relevant link to a judgement of the ECJ, now that would be really useful.

Oooh thanks for that John

[acme4242]

Another Court ruling, the Garcia Avello Judgment made reference to it

10 Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality. However, it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.

[John]

acme4242, thanks for that, but how does it help Monifé? I can't see how it helps.

The issue here, as I see it, is whether an Irish Citizen, living in Ireland, is using EU Treaty Rights as a British Citizen, and I can't see how they can be using Treaty Rights.

[86ti]

Ah right, the Micheletti case.

The issue here, as I see it, is whether an Irish Citizen, living in Ireland, is using EU Treaty Rights as a British Citizen, and I can't see how they can be using Treaty Rights.

But the point of the ECJ judgments are, assuming for the moment that they would indeed extend to the case here, that she is exercising her treaty rights because she is a British citizen living in Ireland.

[acme4242]

If Monifé has a British National Passport, that is the end of it.

She is a beneficiary from EU law while living in Ireland.
And she does not need to have lived in the UK or any other EU state.
beforehand.

This is again confirmed in the Chen case.
If you have the citizenship of another EU state, even if you never lived in your "native" country
read here http://www.eucaselaw.info/zhu-and-chen-2004/ and see ECJ Case C-200/02 Chen v UK
You do not need to have exercise freedom of movement by living in the other EU state

The Dept are showing complete disregard for the ECJ law.
Wasting money, and causing unnecessary stress and ordeal
to EU citizens.

[John]

If Monifé has a British National Passport, that is the end of it.

She is a beneficiary from EU law while living in Ireland.

Why is that the end of it? There is also an Irish passport being held, so why is she a beneficiary from EU law? That is the crux of the matter. So I ask again, are there any ECJ cases that assist us, because I haven't seen any mentioned in this topic thus far.

[acme4242]

If Monifé has a British National Passport, that is the end of it.

She is a beneficiary from EU law while living in Ireland.

Why is that the end of it? There is also an Irish passport being held, so why is she a beneficiary from EU law? That is the crux of the matter. So I ask again, are there any ECJ cases that assist us, because I haven't seen any mentioned in this topic thus far.

But the ECJ said it is not permissible for a Member State to restrict the
effects of the grant of the nationality of another Member State.
Am I missing something here ?

27.
Such a link with Community law does, however, exist in regard to persons in a situation such as that of the children of Mr Garcia Avello, who are nationals of one Member State lawfully resident in the territory of another Member State.

28.
That conclusion cannot be invalidated by the fact that the children involved in the main proceedings also have the nationality of the Member State in which they have been resident since their birth and which, according to the authorities of that State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty (see in particular, to that effect, Case C-369/90 Micheletti and Others [1992] ECR I-4239, paragraph 10). Furthermore, Article 3 of the Hague Convention, on which the Kingdom of Belgium relies in recognising only the nationality of the forum where there are several nationalities, one of which is Belgian, does not impose an obligation but simply provides an option for the contracting parties to give priority to that nationality over any other.

[86ti]

Those are exactly the parts the Austrians have used in their judgement.

[Obie]

I don't think this issue needs to be referred to the ECJ, as it has already been addressed in Chen.

18
The Irish and United Kingdom Governments’ contention that a person in Catherine’s situation cannot claim the benefit of the provisions of Community law on free movement of persons and residence simply because that person has never moved from one Member State to another Member State must be rejected at the outset.

19
The situation of a national of a Member State who was born in the host Member State and has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, thereby depriving that national of the benefit in the host Member State of the provisions of Community law on freedom of movement and of residence (to that effect, see, in particular, Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraphs 13 and 27).

Also the significance of the Carlos Garcia Avello case is that the children holds both Belgian and Spanish nationality, and the court was explicitly stating that by virtue of their Union Citizenship nationality, the Belgian authority cannot simply disregard their status, because they hold its nationality, and confine their circumstance to purely internal, for which community law is inapplicable.

Community law has all or nothing effect, if it is applicable in one case, it is applicable mutatis mutandis

25
Although, as Community law stands at present, the rules governing a person's surname are matters coming within the competence of the Member States, the latter must none the less, when exercising that competence, comply with Community law (see, by way of analogy, Case C-336/94 Dafeki [1997] ECR I-6761, paragraphs 16 to 20), in particular the Treaty provisions on the freedom of every citizen of the Union to move and reside in the territory of the Member States (see, inter alia , Case C-135/99 Elsen [2000] ECR I-10409, paragraph 33).

26
Citizenship of the Union, established by Article 17 EC, is not, however, intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law (Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, paragraph 23).

27
Such a link with Community law does, however, exist in regard to persons in a situation such as that of the children of Mr Garcia Avello, who are nationals of one Member State lawfully resident in the territory of another Member State.

28
That conclusion cannot be invalidated by the fact that the children involved in the main proceedings also have the nationality of the Member State in which they have been resident since their birth and which, according to the authorities of that State, is by virtue of that fact the only nationality recognised by the latter. It is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty (see in particular, to that effect, Case C-369/90 Micheletti and Others [1992] ECR I-4239, paragraph 10). Furthermore, Article 3 of the Hague Convention, on which the Kingdom of Belgium relies in recognising only the nationality of the forum where there are several nationalities, one of which is Belgian, does not impose an obligation but simply provides an option for the contracting parties to give priority to that nationality over any other

[Monifé]

Thanks for those extracts Obie.

Thats brilliant, I knew that dual citizenship was allowed just couldn't remember where I had heard the proof.

I just hope the DOJ will cop on before someone has to bring them to court.

[9jeirean]

Thanks for those extracts Obie.

Thats brilliant, I knew that dual citizenship was allowed just couldn't remember where I had heard the proof.

I just hope the DOJ will cop on before someone has to bring them to court.

I wouldn't hold my breath Monife (nice name BTW). Dermot Ahern has shown his penchant for wasting tax payers' money and blantan ignorance if not outright disregard for clearly stated law. I think we can bet this is also heading to the court.

[Monifé]

It doesnt bother me if it goes to court, I just hope it all happens before the end of November.

I have faith in my firm of solicitors because they have won a good few cases against DOJ recently, and judging from the newsletter they might have other dual citizen clients, so hopefully one of them will bring them to court.

I like your name too, good play on words.

I was going to go for Bowuni (dont know if I spelled that right) but I like the sound of Monifé much better!!

[acme4242]

And what impact will this have on the Good Friday agreement.
A disregard and contempt for the citizenship of British nationals
who also are Irish Citizens by virtue of being born on the Island
of Ireland.

This small town, bad minded solicitor might be letting all
of hell loose again.
This is something better kept well clear of, if Ahern has any bloody sense.

[9jeirean]

And what impact will this have on the Good Friday agreement..

That is a million dollar question acme4242. I am sure they don't wont to go there, or may be they do who knows

[acme4242]

yes, add the Good Friday agreement question
and Ahern will drop this nonsense very quick.