ESC

Click the "allow" button if you want to receive important news and updates from immigrationboards.com


Immigrationboards.com: Immigration, work visa and work permit discussion board

Welcome to immigrationboards.com!

Login Register Do not show

New ECJ ruling on Permanent Residence.

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

Locked
Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

New ECJ ruling on Permanent Residence.

Post by Obie » Fri Oct 08, 2010 7:45 pm

The European Court of Justice has ruled in the Lassal case that residence accrued before the 2004/38EC directive came into force on 30th April 2006, can be counted as part of the 5 years set in the directive.

Also the Advocate General has given his opinion in the case of Ruiz Zambrano, If the judges follow or engage this opinion, as they usually do, it will mean an end to Reverse discrimination for immobile EU citizens.
Smooth seas do not make skilful sailors

Rolfus
Member
Posts: 183
Joined: Sun Sep 12, 2010 3:53 pm
Location: Europe

Implementation of Zhu & Chen

Post by Rolfus » Sun Oct 10, 2010 10:36 am

The Ruiz Zambrano opinion covers three questions. Question 3 is:
(3) Must Articles 12 [EC], 17 [EC] and 18 [EC], in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights, be interpreted as meaning that the right of a minor child who is a national of a Member State to reside in the territory of the State in which he resides must entail the grant of an exemption from the requirement to hold a work permit to the relative in the ascending line who is a national of a non-member State, upon whom the child is dependent and who, were it not for the requirement to hold a work permit under the national law of the Member State in which he resides, fulfils the condition of sufficient resources and the possession of sickness insurance by virtue of paid employment making him subject to the social security system of that State, so that the child’s right of residence is coupled with the useful effect recognised by Community case-law (Case C-200/02 Zhu and Chen) in favour of a minor child who is a European citizen with a nationality other than that of the Member State in which he resides and is dependent upon a relative in the ascending line who is a national of a non-member State?’
If I have understood correctly, the Advocate General believes that it would be a step too far to answer this question positively, when there is no link to the scope of application of EU law [such as movement between two states].

Does this mean that if a third country national parent accompanies an EEA National child moving from another EU state to the UK then EU law requires from the UK the 'grant of an exemption from the requirement to hold a work permit'?

That would mean that the UK policy is out of step with EU law:
'Entry Clearance Guidance - General Instructions
Chapter 21 Annex 3 - EEA national minor children
21.3.1 - Ruling in European Court of Justice (ECJ) case of Chen
In the Chen case the ECJ ruled that an EEA national child who held sickness insurance would have a right to reside in the UK with his or her non-EEA parent provided that the non-EEA parent had sufficient resources to ensure that the child did not become a burden on public funds.
21.3.3
...
You should remember that any non-EEA relatives who are granted leave to enter or remain on the basis of their relationship to an EEA child will not have access to the UK labour market (they are granted leave to remain with no access to employment or public funds.) However, if they have leave granted in their own right (e.g. a work permit) they would then obviously be able to work. However, it is unlikely that they would then apply under EC law anyway. If there is sufficient evidence to suggest that the child's non-EEA relatives would need to work in the UK in order to support the child, the application for leave should be refused.'
civis europeus sum

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Sun Oct 10, 2010 1:12 pm

What i believe the advocate general is saying is that, the concept of purely internal matter should now be reconsidered. He believes nationals should, in their memberstates of origin be able to invokes rights under Article 12EC ( now Article 18TFEU) on discrimination, and Article 17 and 18 EC ( now Article 20 & 21 TFEU), in cases where equalivent provisions are not made in national law. However it states that memberstate are not precluded from refusing rights of residence to the ascendant of their national, but this has to meet the proportionality criteria. Therefore national who have never exercised the treaty rights can claim those rights under the treaty.

This does not go as far as one might hope, but it means British Children , whose parents are facing deportation, can invoke this provision in the UK, if the judge engage the Advocate General's Opinion.

However it still remains that people who have never been to another memberstate cannot claim rights under Article 39 EC ( Now Article 45 TFEU), in their memberstate of origin.

The UK policy is certainly out of step, as has been reiterated in a recent court ruling. They put Chen Category people under the UK immigration rules, as opposed to European law. The refuse them right to work, which could be seen as not facilitating them to exercise their rights under utmost dignity.

If parents cannot work or claim benefit, how can there be a guarantee that their children will not suffer any form of hardship?

That is discouraging the children from exercising their rights to remain in a memberstate, which is against the treaty rules.

If the judges engage Advocate General, it would essentially mean the UK would have to reconsider its policy of detaining the parents of British national, which at the moment is done with impunity.
Smooth seas do not make skilful sailors

John
Moderator
Posts: 12320
Joined: Wed Nov 10, 2004 2:54 pm
Location: Birmingham, England

Post by John » Sun Oct 10, 2010 3:33 pm

Obie, many thanks for starting this topic and including its links.

I think those judgements are highly important, so have made this topic into a "sticky".
John

mehroozeb
Newly Registered
Posts: 17
Joined: Fri Oct 22, 2010 6:25 pm

updates please

Post by mehroozeb » Sat Oct 23, 2010 5:08 pm

can anyone update on this matter plz? has the court decided anything yet....

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Thu Dec 02, 2010 11:26 pm

Advocate General Kokott has provided her opinion in the case of McCarthy Vs the Secretary of State for the Home Department.

Her conclusions were not entirely positive in regards to people in that category, and completely contradictory to that of Advocate General's Sharpton, in the previous Opinion i mentioned above.

One would have to wait and see by next spring, which direction the Grand Chamber might choose to take.

Something very positive and significant in her opinion, is her assertion that lawful residence under national rules prior to a person becoming a family member of an EEA national should count toward PR under regulation 15. If the court were to support that view and extend the scope of Lassal, it would have a significant impact on non-EEA family members of EEA nationals in the UK.


Of further importance, is the recent determination by the Upper Tribunal in the case of

RK (OFM - membership of household - dependency) India [2010] UKUT 421 (IAC)

The above case would significiantly undermine the position of regulation 8(2) and could mean OFM can claim rights under Article 3(2) if they can show dependency without the requirement they have lived in the same member state as that of the Union Citizen.

It has come to our notice that reference will be made for a Preliminary ruling on the the meaning of faciliation of Entry and Residence within Article 3(2) and who should benefit from the facilitation.

This issue will finally be resolved after years of turbulence and misapplication of community law.
Smooth seas do not make skilful sailors

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Fri Mar 04, 2011 7:07 pm

The Upper Tribunal has finally referred questions to the Court of Justice on the correct application of Article 3(2) of Directive 2004/38EC, after nearly 5 long years. One cannot help thinking why on earth they took this long.

Hopefully THIS ISSUE will be resolved once and for all
Smooth seas do not make skilful sailors

fysicus
Senior Member
Posts: 767
Joined: Sat May 17, 2008 9:04 am
Location: England
Netherlands

Zambrano arrest

Post by fysicus » Sat Mar 05, 2011 5:06 pm

Obie wrote:Also the Advocate General has given his opinion in the case of Ruiz Zambrano, If the judges follow or engage this opinion, as they usually do, it will mean an end to Reverse discrimination for immobile EU citizens.
It seems this long awaited Zambrano arrest will be published very soon, on 8 March

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Re: Zambrano arrest

Post by Obie » Sat Mar 05, 2011 5:40 pm

fysicus wrote: It seems this long awaited Zambrano arrest will be published very soon, on 8 March
That is a great new. I thought it probably will be due before the end of Spring.

If the result is positive, it will be great for countless number of families.

I was checking for links on this, but so far have been unsuccessful. It is not being published on the Journal of the European Union.
Smooth seas do not make skilful sailors

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Tue Mar 08, 2011 3:25 pm

Mr Zambrano won his case.

This could extend the scope of MN (Tanzania)

Could this mark the end of reverse discrimination, or does the Grand Chamber lack the will power to put an end to it once and for all
Smooth seas do not make skilful sailors

nusayri
Newly Registered
Posts: 4
Joined: Tue Feb 22, 2011 10:26 pm

Post by nusayri » Fri Mar 18, 2011 7:25 pm

Hi everyone firstly i would like to say thanks to everyone who share their exprience and views in this forum it really very helpfull...I just think to write here rather than open new topic... although i gained some idea still i am not clear on my situation briefly i write down my time line

-2001 came to UK with student visa

-2002 applied for asylum seeker

-Middle of 2004 i was refused remain here illegal

-2005 May i start live with my girlfriend up to now she is from poland

-2009 June we have our baby and just 1 week after her birth i was arrested by HO and they issued removal order for me in less than 1 week.I was in Turkey after 8 years.

-2010 March she came to Turkey and we got married. Marriage was our longing idea i never wish to have my baby before marriage but because of HO 2005 february regulation we were not allowed married in UK that time.

-2010 may i obtained familiy permission visa and came back UK after 11 month break.

-2011 marc i recieved RC.

My guestion is do i qualify for PR from now on because of our longing and durable relation with my wife more than 5 years or just because i was not residing here lawfully and removed i have to wait for 5 years...

If someone can advise me on this matter will be very helpful.

mastermind
Member
Posts: 152
Joined: Thu Nov 01, 2007 3:46 am

Zambrano case

Post by mastermind » Fri Mar 18, 2011 8:11 pm

These has been posted in the other forums section, I am reposting just in case here as well:

http://eudo-citizenship.eu/citizenship- ... situations
The Zambrano case: Relying on Union citizenship rights in ‘internal situations’
Wednesday, 09 March 2011 22:08
By Anja Wiesbrock, University of Maastricht

On 8 March 2011 the Grand Chamber of the European Court of Justice issued a significant ruling regarding the interpretation and scope of the concept of European Union Citizenship. In an eagerly anticipated judgment, the Court held that Article 20 TFEU confers a right of residence and employment upon the parents of a minor European Union citizen who has never left the member state of his/her nationality. The judgment can be expected to lead to a major outcry of governments around the Union, reaching or even exceeding the heights of rebellion against the ‘activism’ of the Court after the 2008 Metock decision.

Abandoning the restriction to rely on Article 20 TFEU in an ‘internal situation’
The judgment will have major implications for the member states, as it extends the reach of EU law to an area that was thought to be the last realm of national discretion when dealing with the situation of family members of Union citizens: internal situations. In its recent case law (Garcia Avello, Rottmann) the Court had already largely done away with the requirement to demonstrate a clearly identifiable physical cross-border movement in order to rely on the rights derived from Union citizenship. Yet, the casuistic approach of the Courts and its efforts to find some kind of artificial link to cross-border movement led a considerable degree of legal uncertainty. This has been solved with Zambrano, as the Court unequivocally invokes Article 20 TFEU in a completely internal situation. Even though the Court does not explicitly establish that Article 20 TFEU confers a right to reside in any member state that is independent from a right to move, it implicitly seems to accept Attorney General Sharpston’s reasoning to that effect. The implications of abandoning the restriction to rely on the rights derived from Union citizenship in an internal situation are immense, as the percentage of Union citizens who exercise their free movement rights is still marginal. Zambrano thus extends the reach of Union law to a large number of potential beneficiaries.

The reach of Article 20 TFEU beyond Directive 2004/38/EC
A most notable outcome of the case is the fact that the reach of Article 20 TFEU extends to cases where the so-called ‘Citizens’ Directive’ 2004/38/EC is not applicable. In spite of the fact that primary law generally takes precedence over secondary legislation, this was far from evident, since Article 20 TFEU explicitly subjects the exercise of the rights derived from that article to the conditions and limits defined by the Treaties and secondary legislation. In Zambrano, the Court avoids the restrictions inherent in Directive 2004/38/EC, which applies only to Union citizens who move and reside in a Member States other than that of which they are a national and their family members, by relying on Article 20 TFEU instead. This way it also circumvents the application of the resource requirement in the Directive, which requires non-economically active Union citizens to demonstrate the availability of sufficient resources in order to reside in another member state for a period of more than three months. In this respect the Court departs from Chen, where the requirement of having sufficient resources was considered to be applicable to an infant Union citizen, even though it could be satisfied by relying on the resources of the parents. Thus, it seems to follow from Zambrano that by relying on Article 20 TFEU, Union citizens and their family members are not only freed from the requirement to move, but are equally not subject to any of the conditions and limitations contained in Directive 2004/38/EC. This has the paradoxical outcome that Union citizens who fall under the scope of Directive 2004/38/EC find themselves in a less favourable position than those who cannot rely on the said Directive and therefore fall under the regime of Article 20 TFEU.

What are the restrictions to relying on rights derived from Union citizenship in an internal situation?
In its very brief ruling the Court seems to establish a number of additional requirements for Article 20 TFEU to be relied upon in an internal situation. First, it establishes that the Union citizen concerned must face a potential deprivation of the ‘genuine enjoyment of the substance of the rights’ conferred by virtue of the status of Union citizenship. The applicant’s children in Zambrano faced the threat of the most far-reaching deprivation of their rights as Union citizens, running the risk of having to leave the territory of the Union. The question arises whether the judgment can be extended to the deprivation of other fundamental rights of Union citizens, such as the right to family reunification. A lot will depend on the way in which the Court interprets the requirement of being deprived of the genuine enjoyment of the substance of the rights attached to Union citizenship in its future case law.

Moreover, the Court relies heavily on the fact that in order to enjoy their rights as Union citizens, the Zambrano children are dependent on their parent’s right of residence and employment. It is still unclear whether the same reasoning applies to the third-country national spouses of Union citizens who have never left their country of nationality. If this were to be the case, the Court would have opened the possibility to rely on Union law to a large number of third-country nationals previously excluded from its reach. This would abandon the somewhat arbitrary distinction, and in some member states considerable difference in rights, between the TCN family members of moving and non-moving Union citizens. It would also do away with the necessity to rely on arbitrary constructions, using the ‘Belgian’ or the ‘Swedish’ route in order to rely on EU law for the purpose of family reunification. The remaining uncertainties in this respect make the outcome of the pending McCarthy case all the more interesting.

What about reverse discrimination?
In the same case, the Court will have the opportunity to address the issue of ‘reverse discrimination’. Even though the concepts of ‘internal situation’ and ‘reverse discrimination’ are closely related, they are not identical. In Zambrano the Court fails to address any of the arguments made in respect of a potential violation of Article 18 TFEU in cases of reverse discrimination. Departing from the reverse discrimination case law under Article 18 TFEU would obviously go much further than the possibility to rely on Article 21 TFEU in an internal situation, since its application is not limited to residence and movement rights. AG Sharpston in her proposal suggested to interpret Article 18 TFEU as prohibiting reverse discrimination but only in situations where discrimination is caused by the interaction of Article 21 TFEU with national law, entails the violation of a fundamental right protected under EU law and in the absence of equivalent protection under national law. The Court did not even mention Article 18 TFEU, presumably in order to avoid the opening of a Pandora’s box. A clarification of the possible reliance on Article 18 TFEU in internal situations and the relationship between that provision and Article 21 TFEU would however be most desirable and necessary in the light of legal certainty.

Likely implications for member states’ migration and nationality law
At first sight, the judgment has largely positive implications for third-country nationals residing in the Union, extending the scope of Union law to (certain) third-country national family members of non-movers and restricting national discretion in this respect. Yet, the judgment may have unintended consequences on national migration and nationality law. By extending the scope of rights to be relied upon by Union citizens, the ECJ may have provided member states with an incentive to render it all the more difficult for individuals to gain access to European citizenship in the first place. In the area of migration law, member states may be inclined to try to further tighten their conditions for the admission and residence of third-country national family members, economic migrants and asylum seekers, in order to counteract their loss of control over the admission of family members of non-moving Union citizens. Yet, in this area national legislators already face significant restrains on the basis of EU secondary legislation. It is thus in the sphere of nationality law, which still lies almost exclusively within the sovereignty of the member states, that the most significant changes can be expected to occur. It is not unlikely that the Zambrano judgment will have an impact on member states’ ius soli rules for children and possibly even for naturalisation proceedings. Considering the vast implications of obtaining Union citizenship, member states may be inclined to restrict the possibilities for second generation immigrant children to acquire citizenship upon birth in their territory as well as making it more difficult for first generation migrants to become naturalised.
http://eudo-citizenship.eu/citizenship- ... march-2011
The Court of Justice of the European Union and Citizens of the Union: A Revolution Underway? The Zambrano judgment of 8 March 2011
Thursday, 17 March 2011 19:56
by Elspeth Guild, University of Nijmegen

8 March is generally celebrated as International Women’s Day. This year it may be celebrated as a milestone in children’s rights in the EU and as a point of transition for citizens of the Union. The key event was the handing down of the ECJ decision in the case C-34/-09 Zambrano.

The facts of the case are rather unusual and of a kind one would expect to find troubling the Court over the Returns Directive or some other immigration/asylum law directive. Instead, the Court is faced with an issue which is about EU citizenship. The Zambrano couple are Colombian nationals who have been resident in Belgium since 1999. They arrived on short stay visas then applied for asylum. Their asylum applications were rejected but on appeal the Belgian court, while not reversing the refusal, stated that the authorities must not send the couple back to Colombia on account of the civil war there. The couple thus fell into a limbo – no immigration/asylum status in Belgium but no action by the Belgian authorities to expel them. At first, Mr Zambrano was employed, but then his workplace was raided and his employer had to sack him as Mr Zambrano did not have a work permit. He was then refused unemployment benefit because of his irregular status. The couple kept applying for residence documents but their applications were consistently refused. Eventually, an industrial tribunal which was considering yet another refusal of social security benefits to the family refers the matter to the ECJ at the end of 2008.

What makes the case one about citizenship of the Union is that while all this was going on, the couple had two children, born in Belgium, who both acquired Belgian nationality by birth. One might well ask: How does this make the matter one about EU citizenship – is it not a case which falls outside EU law as it is wholly internal to one Member State? This is exactly what the eight Member States which intervened in the case argued. But the ECJ held otherwise.

The operative part of the judgment is surprisingly short – only 10 paragraphs. This may indicate that there was much disagreement among the judges about the legal issues. On the positive side, this means the case is very clear and there is no space for ambiguity. The key and startling findings of the ECJ are as follows:

• The case of the Zambrano family is a matter of EU law as the children are Belgian nationals, and therefore also EU citizens, living in Belgium;
• Directive 2004/38 does not apply to them as it only applies to EU citizens who move and reside in another Member State;
• The rights of the two Zambrano children, who are EU citizens, comes directly from Article 20 TFEU (citizenship of the Union);
• Those rights include:
o The right to live in Belgium (para 40 and 41);
o The right of residence for their third country national parents (both of them it would seem) to live in Belgium with them as this is necessary for the children who are EU citizens to enjoy their rights as citizens of the Union (para 42 and 43);
o The right to a work permit for the third country national parents to support the children (as otherwise they might all have to leave the state on ground of penury) (para 44).


There is no mention of the EU Charter of Fundamental Rights or the ECHR. These rights for third country nationals derive directly and exclusively from Article 20 TFEU – citizenship of the European Union.

What does this mean? There are two immediate consequences:

• Any third country national family which includes at least one dependent minor child who is an EU citizen, even if that child is the citizen of the state where the family lives, is entitled to rely on the EU child’s rights under Article 20 TFEU to a residence right in that state. There is no clarity on the form of the residence right.
• The third country national family members of a dependent minor who is an EU citizen, even where that child is a national of the state where the family lives, are entitled to work permits.

Both these rights for third country national family members are based on the principle that the dependent minor with EU citizenship might have to leave the territory of the Union in order to accompany his or her parents, if they were not allowed to reside and work to support the child.

From this logic some corollary issues arise:

• When is a child not a dependent minor child? In the ECJ’s judgment C-480/08 Teixeira interpreting Article 12 Regulation 1612/68, the Court found for the purposes of that provision, according to which a child is defined as dependent and under 21 for the purposes of education rights, that denying the right after the child passed the upper age limit would deprive the right of its force (para 82) and that even adult children may need the presence of their parents to successfully access their education rights. This line of argument could be applied by analogy;
• The same Teixeira judgment found that access to social welfare benefits for the parent was consistent with caring for the (adult) child in education;
• Does the logic also apply to a third country national spouse and other family members? There does not seem to be any obvious reason why the argument should be any different, if the third country national family member were a spouse rather than a child. The ECJ will have a chance to address this issue in the pending McCarthy case.

Rolfus
Member
Posts: 183
Joined: Sun Sep 12, 2010 3:53 pm
Location: Europe

Post by Rolfus » Sat Mar 26, 2011 10:02 pm

UKBA does not treat Chen cases under EEA rules, but under the Immigration Rules.

http://www.ukvisas.gov.uk/en/ecg/eunati ... d#14772496
EUN5.2 Is the primary carer or relative of an EEA national minor child considered a 'family member' for the purposes of the EEA Regulations?

No. The Chen ruling did not say that the EEA child's parent would have a right to reside as a "family member", as defined in the EEA Regulations, because a parent cannot be financially dependent on a child. However, the primary carer or relative may be entitled to reside in a Member State solely to facilitate the child to exercise their Treaty rights. They do not qualify for an EEA family permit but can apply under the Immigration Rules for leave to enter as the primary carer or relative of an EEA national self-sufficient child.
Will Zembrano parents be treated the same but with a work permit?
civis europeus sum

Rolfus
Member
Posts: 183
Joined: Sun Sep 12, 2010 3:53 pm
Location: Europe

Post by Rolfus » Mon Apr 11, 2011 9:21 am

M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) http:http://www.bailii.org/uk/cases/UKUT/IAC ... coast.html
appears already to have rendered UKBA's position invalid.
45. Although for the purpose of enabling her to board a flight to the United Kingdom with C it makes little material difference what the document issued by the UK authorities is called, it should be an EEA family permit. This is a decision based on an EU law right under the Treaty and the Directive, the appropriate document is that referred to in national law for such purposes namely an EEA family permit issued under EU Rules. Its issue is not subject to the discretionary or mandatory grounds for refusal under paragraph 320 Immigration Rules. An EU right can only be negated or restricted by EU grounds of public policy that are not engaged here.
civis europeus sum

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Thu May 05, 2011 11:35 am

The McCarthy Judgement is out.

As expected, Mrs McCarthy is not covered by the directive. However she she has a right under Article 20 TFEU. Adult are not precluded from the provisions of Ruiz Zambrano, provided they can show it infringes their right of movement, and the substance of their right as Union Citizen.

It is not quite positive, but it was always common knowledge that due to her lack of treaty rights, she would never had succeeded in her case anyway.
Smooth seas do not make skilful sailors

mastermind
Member
Posts: 152
Joined: Thu Nov 01, 2007 3:46 am

Post by mastermind » Thu May 05, 2011 3:47 pm

Sad to see that a court of justice earnestly stands by such a fascist discrimination measure and creating different kinds of citizens with different rights (those who exercised their right of free movement and those who did not). So, they back that any EU citizen has a right to stay with their non-EU spouse anywhere in EU but their own country? Where is justice in that? Dark times for Europe I say.
(although the judgement explicitly refers to dual EU nationals only but nevertheless effectively this judgement reeks of intention of excluding of all EU nationals living in their own countries and certainly will be used as such by local authorities)

User avatar
rachellynn1972
Member of Standing
Posts: 285
Joined: Thu Dec 30, 2010 11:01 pm
Location: Derry
Contact:

Post by rachellynn1972 » Tue May 10, 2011 7:12 pm

i want to know regarding maccarthy case, what happen to the northern ireland people who can choose which country they wish to belong and the agreement between uk an irish regarding there citizenship. mostly all nothern goes to ireland some stay more than three month and come back to the north, most live in the two countries, how can they say they are not exercising treaty right. i know of many that will say they are not british and they are born in the north and can claim both countries.

http://en.wikipedia.org/wiki/People_of_Northern_Ireland

http://en.wikipedia.org/wiki/Belfast_Agreement

imraniqbal2010
Member of Standing
Posts: 490
Joined: Sat Jun 04, 2011 10:13 am

Post by imraniqbal2010 » Tue Aug 09, 2011 8:22 pm

what was this judgment in simple words and what was the case about?
.

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Fri Sep 09, 2011 2:40 pm

imraniqbal2010 wrote:what was this judgment in simple words and what was the case about?
It was regarding a dual citizen British/Irish woman who wished for her jamaican husband to remain with her in the UK under EU law. But because she had never moved or lived anywhere but the UK, the court ruled that she could not benefit from the directive 2004/38/EC (Free Movement Directive).
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Monifé
Senior Member
Posts: 653
Joined: Thu Feb 04, 2010 5:42 pm
Location: Dublin

Post by Monifé » Fri Sep 09, 2011 2:41 pm

Does anyone know if there are any pending cases against the McCarthy judgement? And if so, the proposed date of judgement?
beloved is the enemy of freedom, and deserves to be met head-on and stamped out - Pierre Berton

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Wed Dec 21, 2011 6:01 pm

The CJEU has issued their judgement in the case of Ziolkowski

Essentially, someone from accession state who has been residing in the UK prior to their country joining the EU can claim PR, provided they meet the condition under EU rules, in the period they resided in the memberstate under national law.

This case could have an implication for Romania and Bulgarian national. There is a possibility it may affect non-EU national, even though not explicitly states, who had resided under national law as a worker, self employed, student or self-sufficient person prior to acquiring right under the EEA regulations.
Last edited by Obie on Fri Dec 23, 2011 1:54 pm, edited 1 time in total.
Smooth seas do not make skilful sailors

howlong
Newbie
Posts: 41
Joined: Sat Mar 19, 2011 8:43 pm

Post by howlong » Wed Dec 21, 2011 8:26 pm

Thank youObie
Do you think it will apply to self sufficient pimary carer/parent of EEa child in UK (Chen Visa)?

mcovet
BANNED
Posts: 494
Joined: Thu Mar 25, 2010 2:00 pm

Post by mcovet » Tue Dec 27, 2011 12:12 am

This is very interesting, although ridiculous and weird! Imagine a situation where a non-EEA national had studied in the UK for 4 years and then, having gotten married for 1 year, would acquire Permanent Residence? Sounds illogical and, compare this case to the one below from the UK, which makes much more sense.

http://www3.eurolii.org/uk/cases/UKIAT/2007/00073.html

GN (EEA Regulations: Five years Residence) Hungary [2007] UKAIT 00073

I feel that CJEU is way too liberal in this sense... but the bottom line is that 5 years of lawful residence, culminating in some form of EU element, would and should suffice for PR! Fair enough if this is applied universally and consistently and not through appeals and tribunal hearings.

Well done Obie for finding this case, I have several people who could benefit from this case (non-EEA nationals) and they could probably just quote it when UKBA refuse their early applications for PR.

mcovet
BANNED
Posts: 494
Joined: Thu Mar 25, 2010 2:00 pm

Post by mcovet » Tue Dec 27, 2011 12:14 am

howlong wrote:Thank youObie
Do you think it will apply to self sufficient pimary carer/parent of EEa child in UK (Chen Visa)?
I don't see any reason why it should not! Go for it on the basis of this judgment, you have nothing to lose but only to gain! It could obviously take an appeal to achieve your goal, but hey, you may be able to save extra year/s with this judgment

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Tue Dec 27, 2011 2:53 am

howlong wrote:Thank youObie
Do you think it will apply to self sufficient pimary carer/parent of EEa child in UK (Chen Visa)?
You might have a case even before this judgement or this judgement may help you, i don't know as i am not familiar with your case.

Perhaps you may want to consult a legal adviser to see how it affects you.
Smooth seas do not make skilful sailors

Locked
cron