refusal under Zambrano

mauritania · Post by **mauritania** » Thu Dec 29, 2011 1:30 pm

Well after seven months of waiting we got a refusal. Basically because my partner holds residency in Spain and this means our daughter doesn't have to leave the Union.

I'm hoping to take this to court as where do they expect we get the money and how will my daughter be able to see her father?? Also I am pregnant with baby no.2 so this is ridiculous.

knapps · Post by **knapps** » Thu Dec 29, 2011 2:24 pm

The post is not very clear unfortunately but Sorry to hear about it. What do you mean about money? On Residency you can work

mauritania · Post by **mauritania** » Thu Dec 29, 2011 2:41 pm

Sorry, wrote the last post in a temper lol.

I meant how can we get money for flights to travel back and forth to Spain for the kids to see there father, (also my partner).

I cannot work at the moment due to complications in pregnancy and our first child is only 9months old.

Just received the letter this morning so still reeling from it but basically their decision is that he does not fall under the Zambrano ruling as he holds long term residency in Spain and this means that our daughter would not have to leave the union if she wants to see her father. I find it amazing that they can base a judgement on this, they really don't think about each case individually.

adlexy · Post by **adlexy** » Thu Dec 29, 2011 3:26 pm

As is usual in these type of scenario, they make it unnecessarily ambiguous.

I thought the essence of the Zambrano ruling is that ultimately, the family stays together, especially where the child want to stay or deemed to want to stay by the parent? So what is the point they are trying to make? That the father travels from Spain to see the child in Ireland? Some of these guys are wet behind the ears! I guess they would prefer to send all of you to Spain instead of you staying in Ireland.

I will suggest you take it up with them - If your child is Irish, that child is entitled to stay in Ireland with both parents.

All the best

mauritania · Post by **mauritania** » Thu Dec 29, 2011 3:40 pm

Oh yes we will be taking it up. I am an Irish Citizen, my child is an Irish Citizen.

Adlexy I took the same from the ruling as you. Both me and my father took from the letter that they would rather us all in Spain too.

Can you imagine even trying to get him a visitor visa considering he has over stayed this one and has now been refused residency.

IQU · Post by **IQU** » Fri Dec 30, 2011 10:54 pm

i think you should make contact with mrci,irish immigrant council and citizenship coucil also .good luck

mauritania · Post by **mauritania** » Sat Dec 31, 2011 1:00 pm

Thanks IQU, we have a solicitor through the Immigrant Council since June this year. They are a fantastic organization and I strongly urge anyone with immigration issues to contact them.

At the moment our case is being forwarded to council for consideration. We also have a couple of more options which include applying on humanitarian grounds, My partner leaving for Spain and applying from there for a D-reside. There is also the option of me leaving for Spain with our baby and look for work there but this is not really a viable option for us as I am pregnant at the moment and this would be too much stress, also my partner having to return to Spain is ultimately our last resort.

Have many more people received responses from INIS regarding their applications? I asked some TD's to contact on our behalf and within two weeks they had come to their decision. Unfortunately not the decision we were hoping for but not altogether un-expected. You will have to excuse my previous posts, as you can imagine I wrote them in shock and despair.

The minister refers in his ruling to the Dereci judgement, this I fail to understand. The only relating factor between our cases is that we had all applied under Zambrano.

fatty patty · Post by **fatty patty** » Mon Jan 02, 2012 12:36 pm

INIS are looking at dereci judgment as you are Irish citizen and they are completely bypassing zambrano (where both parents were non-eu except their dependent child). Also the fact that your partner has spanish residency gives them more the reason to say that genuine enjoyment of family rights "aren't broken up" as Irish citizen is free to move within EU (in this case to Spain). Agree with the poster above to go and apply on spouse of irish ground (1 year or so wait) via a solicitor.

The Court in Dereci also does not appear to distinguish between categories of familial relationship in applying the test of ‘genuine enjoyment’. Whereas the decision in McCarthy may have suggested
that the spousal relationship by its nature will fail where the dependency relationship of a parent and child (Ruiz Zambrano) will succeed, such distinction gains little substantiation in the joint cases of Dereci and others

http://eudo-citizenship.eu/docs/Dereci% ... omment.pdf

mauritania · Post by **mauritania** » Mon Jan 02, 2012 1:16 pm

Thanks fatty patty, I was looking at it from the point that in Dereci they were not young children, I'm not too well informed on it but I think they are all over 21 in Dereci?

Am waiting to hear back from the solicitor to decide what option we will take.

Morrisj · Post by **Morrisj** » Mon Jan 02, 2012 4:56 pm

Under Irish constitution marriage right is supposed to kick in refering from recent High Court Cases,therefore had your husband apply as spouse of Irish citizen,a refusal would require a substantial ground even tho the right was not automatic,Best of Luck.

mauritania · Post by **mauritania** » Mon Jan 02, 2012 7:49 pm

He is not my husband by law, he is by muslim religion but we have not had this authorised or received a certificate as of yet. We did not include this in our application because all we had was a piece of paper that was handwritten. (We were married in July 2010)
He has contacted his family in his home country to get this authorized so that we can have it translated here. They hope to have this by Thursday. Will this have any bearing on whatever form of appeal we take?

walrusgumble · Post by **walrusgumble** » Tue Jan 03, 2012 11:34 am

mauritania wrote:Sorry, wrote the last post in a temper lol.

I meant how can we get money for flights to travel back and forth to Spain for the kids to see there father, (also my partner).

I cannot work at the moment due to complications in pregnancy and our first child is only 9months old.

Just received the letter this morning so still reeling from it but basically their decision is that he does not fall under the Zambrano ruling as he holds long term residency in Spain and this means that our daughter would not have to leave the union if she wants to see her father. I find it amazing that they can base a judgement on this, they really don't think about each case individually.

The sole basis for the judgment of Zambrano was, whether the child would be forced to leave the Union and not the country per se. No more no less. That is all that had to be considered. THey did not look into other things.

In your case, the child would not have to leave the union.That is all that is required of Member States in Zambrano. THe facts of your case seem clear, they seem to be different from Zambrano.

However, you mentioned that your partner is "resident" in Spain. Is he a Citizen of Spain? Only a resident? But that does not mean definite then, and he could be at risk of loosing status in Spain, like any other Immigrant. I take it that he is not a EU Citizen himself.

What about you? Can you try to live in Spain - I ask only to see what are your realistic options. The point of asking is to see what argument could be made regarding the insurmountable obstacles, if any, as per Article 8 ECHR, (I should note that the charter draft a similar Article 8 in more positive fashion) involved.

I would concede that since, neither parent (appears) not to be of EU citizenship, there is a small but valid argument to be made here, that Zambrano should apply.

What is the exact nature of your partner's residency in Spain?

walrusgumble · Post by **walrusgumble** » Tue Jan 03, 2012 11:38 am

adlexy wrote:As is usual in these type of scenario, they make it unnecessarily ambiguous.

I thought the essence of the Zambrano ruling is that ultimately, the family stays together, especially where the child want to stay or deemed to want to stay by the parent? So what is the point they are trying to make? That the father travels from Spain to see the child in Ireland? Some of these guys are wet behind the ears! I guess they would prefer to send all of you to Spain instead of you staying in Ireland.

I will suggest you take it up with them - If your child is Irish, that child is entitled to stay in Ireland with both parents.

All the best

The judgment is available on the net. Point out the precise words in the judgment that support your very wide interpretation please.

Your looking far too into what the judgment actually says. Look at the facts of the Zambrano case and look how it contrasts here. The case certainly aint as wide reaching (ie applies in all cases) as you suggest

walrusgumble · Post by **walrusgumble** » Tue Jan 03, 2012 11:44 am

mauritania wrote:Oh yes we will be taking it up. I am an Irish Citizen, my child is an Irish Citizen.

Adlexy I took the same from the ruling as you. Both me and my father took from the letter that they would rather us all in Spain too.

Can you imagine even trying to get him a visitor visa considering he has over stayed this one and has now been refused residency.

Ah ha. Your an Irish Citizen.

Well, sorry to tell you but Zambrano does not apply at all. As you appear not to have exercised your EU treaty rights, EU law does not apply to what is considered as Internal Situation. Unless you can show that it is impossible, beyond all control, for you to be able to exercise your travelling rights (on behalf of child) then EU law does not apply.

See the recent case of Dereci & Others v Austria.

If you, as an Irish person, went to Spain, then you would be exercising your EU rights.

mauritania · Post by **mauritania** » Tue Jan 03, 2012 11:45 am

You are correct, he is only a resident of Spain. He holds no citizenship in any EU countries. I can not at the present time go and live in Spain. Without going into too much detail, I suffered a lot of post birth complications with my daughter and some of which I still suffer with today. We currently live with my parents who support us a lot. If I moved to Spain, we would have no family support and although I speak reasonably well Spanish, I wouldn't be to competent with the medical lingo and being pregnant again and needing to have another operation, this would be a major cause of stress to me.
Also to go without any guarantee of jobs would not be fair on our daughter. At least here I know I have the money to feed, clothe and provide for all her needs. Thanks for your reply.

walrusgumble · Post by **walrusgumble** » Tue Jan 03, 2012 11:48 am

mauritania wrote:Thanks IQU, we have a solicitor through the Immigrant Council since June this year. They are a fantastic organization and I strongly urge anyone with immigration issues to contact them.

At the moment our case is being forwarded to council for consideration. We also have a couple of more options which include applying on humanitarian grounds, My partner leaving for Spain and applying from there for a D-reside. There is also the option of me leaving for Spain with our baby and look for work there but this is not really a viable option for us as I am pregnant at the moment and this would be too much stress, also my partner having to return to Spain is ultimately our last resort.

Have many more people received responses from INIS regarding their applications? I asked some TD's to contact on our behalf and within two weeks they had come to their decision. Unfortunately not the decision we were hoping for but not altogether un-expected. You will have to excuse my previous posts, as you can imagine I wrote them in shock and despair.

The minister refers in his ruling to the Dereci judgement, this I fail to understand. The only relating factor between our cases is that we had all applied under Zambrano.

Take time out and read Dereci. Both McCarthy June 2011 (similar law, slightly different on the facts) and Dereci Novemberish 2011 have shown have limited Zambrano is.

walrusgumble · Post by **walrusgumble** » Tue Jan 03, 2012 11:55 am

mauritania wrote:You are correct, he is only a resident of Spain. He holds no citizenship in any EU countries. I can not at the present time go and live in Spain. Without going into too much detail, I suffered a lot of post birth complications with my daughter and some of which I still suffer with today. We currently live with my parents who support us a lot. If I moved to Spain, we would have no family support and although I speak reasonably well Spanish, I wouldn't be to competent with the medical lingo and being pregnant again and needing to have another operation, this would be a major cause of stress to me.
Also to go without any guarantee of jobs would not be fair on our daughter. At least here I know I have the money to feed, clothe and provide for all her needs. Thanks for your reply.

You are going to have to try and appeal, under Irish law, to the Minister. State your case and explain why the father needs to be in Ireland.

mauritania · Post by **mauritania** » Tue Jan 03, 2012 12:01 pm

Sorry on my mobile at the minute. I'll get the laptop in a few moments and reply to all your posts then Walrus, thanks

mauritania · Post by **mauritania** » Tue Jan 03, 2012 12:22 pm

Ok back again, my partner has permanent residency in Spain, he has been there over 10 years.
The exercising treaty rights has me quite confused. By just going to Spain is that exercising or would I need to be there for any amount of time? At the moment, it's really out of the question but no harm in asking.
After Fatty Patty's response I had a quick read of Dereci, she made a valid point. I had limited knowledge of Dereci beforehand but I can understand the points being made.

In your opinion, under which law should we be applying? And realistically what are our chances?

walrusgumble · Post by **walrusgumble** » Fri Jan 06, 2012 10:04 am

mauritania wrote:Ok back again, my partner has permanent residency in Spain, he has been there over 10 years.
The exercising treaty rights has me quite confused. By just going to Spain is that exercising or would I need to be there for any amount of time? At the moment, it's really out of the question but no harm in asking.
After Fatty Patty's response I had a quick read of Dereci, she made a valid point. I had limited knowledge of Dereci beforehand but I can understand the points being made.

In your opinion, under which law should we be applying? And realistically what are our chances?

Has your partner considered applying for Spanish Citizenship?

To answer your question, as per Article 6 of DIrective 2004/38 EC you can exercise your rights by travelling to Spain, without restriction for a period of 3 months. After this period, you must comply with Article 7 of the Directive 2004/38 EC (Ie work, self employed etc. Job hunting, for a short period, is included). Should you marry, or prove that there is a de facto relationship, your partner could have an additional reason to stay in Spain, either via Article 2.2 or 3.2 of the said Directive. (But that is the least of your worries)

Assuming you did get work in Spain, and you stayed for about 6 months-1 year or so, you could, as an Irish person, then (and only then) be able to say you are exercising your Treaty Rights in Ireland, by returning to Ireland, via the Surindeer Singh 1992 judgment. This is really the only way, as an Irish person, you could invoke EU law while living in Ireland.

I take it you now understand why EU law does not apply to you now, while you live in Ireland, despite Zambrano and your child. Read the cases, don't worry, unlike Irish or English cases, EU law cases are surprisingly simple to understand and are short .

As for now, and wanting to stay in Ireland, EU law will not help. Irish law is the only one. It might be a bit tricky, I don't know what Shatter is doing, but, As for chances, you have no business applying until

(a) As you are not married, you need to meet the rough criteria for time spent as a couple, as per the inis.gov.ie website, for de facto relationships. I think its something like 2-4 years (you need to check).

De facto relationships mean basically you live like man and wife. You will need to prove genuine relationship. As you live apart, plane tickets and evidence of travelling to meet each other would help (Your partner's passport will likely be stamped) Evidence that he is sending over money to you would be great too, or vice versa.(regular basis)

(b) THe fact that you do have a child together, may ease the inevitable problems that you will face in point A. But you need to prove that he is playing an active role in the child's life. (eg sending money, regular visits). Make sure you appoint him as a guardian (as ye are not married, he has no constitutional rights over the child in any shape or form)

(c) The fact that he has a good immigration history, and that he ain't illegal in Spain (make sure, if he comes to Ireland, try and stay legal - these applications take ages to consider)

(d) Marriage could help, but at the same time it is not guaranteed (see the INIS website). To be honest, unless you are serious about it, I would not marry until immigration is solid and if your not prepared to live in another country in order to stay together. That said, a de facto relationship, if you meet the criteria would suffice (obviously a bit harder to prove)

In conclusion,

It is discretionary. However, if there is a solid family history (please tell us some of the history of family life), you might have a shot. Sort out yer issues and see a solicitor.

mauritania · Post by **mauritania** » Fri Jan 06, 2012 12:17 pm

Thanks for replying.

Yes he has considered applying for Spanish Citizenship and he would be the first to admit he was a fool not to do it when he was in full time employment. Unfortunately the company he worked for went bust and he was made redundant, he hasn't had full time employment since. His friend applied at the same time and three years later is still waiting to find out if he has got it or not.

Okay brief family history - met in Spain in 2009, started a relationship. I was working for summer months, he had some casual work. I was there may-september. I came home when my contract was up, resumed college. We kept in contact -skype/email/phone. I went back in April 2010, he came back too. I resumed work and he took any bits of work that came his way. Found out I was pregnant in July 2010, married -under muslim religion- same month (still waiting to get this official as its only a handwritten piece of paper at the moment.)
I came home in September 2010, we had no work and I didn't have the proper Spanish for my medical appointments. I went to visit him in December 2010.
We applied for a multi-trip Visa in Nov 2010, by December this was still sitting in the embassy so we thought were never going to get this. I finally managed to convince man in embassy to send it to Dublin thinking it would still take them some time to process it. Lovely lady received it, rang me and asked for some photos and relationship history, emailed her that and two days later he has a multi-trip visa! But us being a bit naive didn't think it would be processed so quick and it started from February. My partner was doing a course at the time and with no means of income on his side he couldn't come over. Baby born in April and partner arrived here in May.
Decided he wanted to stay and of course I wanted him to stay so he went back, sold the car and did whatever and came back here in June to stay.
He has been here since. In October discovered pregnant again.
Our Solicitor has passed our case onto council to be considered and she has highlighted our options for us. We will be meeting in the next couple of weeks to discuss which path we take.

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refusal under Zambrano

refusal under Zambrano