Rip v Winkle wrote:It was not a ruling under Directive 2004/38EC, as the heading of your post might suggest, but rather under Article 41 of Irish constitution.
I thought that the "reverse discrimination" situation arose from the statutory instrument transposing directive 38 into the Irish system. This appeared to create a situation where "freedom of movement entitled" families would be somewhat favoured when compared to Irish citizens. Perhaps I am mistaken .. I'm not a lawyer. My point is that if article 41 grants equal or superior protection, it is hard to see how the Statutory Instrument could itself be discriminatory. It simply sets out how directive 38 is implemented.
It was EU law principle, (and not the Irish transposing of the Directive - the principle has always being around, the Directive updates the specifics and unifies all the previous directives and regulations, which some new stuff) and its comparison with normal Irish immigration law, that attracted arguments of reverse discrimination, which has, for now, being rejected by Europe. The Statute itself was challenged for other reasons (where the State itself in Metock, had argued oh, this is reverse discrimination - the ECJ said no, Irish policy was Irish problem)
Rip v Winkle wrote:
Anyway, as an Irish citizen I would be horrified to think that "equality before the law" together with "charity and justice" were being routinely ignored in pursuit of vague and, frankly, unjustifiable concerns.
THose terms, "equality before the law" together with "charity and justice"
have always being ignored and lip service given. Article 40.1 is one of the weakest, less successfully cited provisions in the Constitution (the test is very very hard) - You doubt me, read Oran Doyle's books on it - any decent library will have them.
Charity and Justice in the preamble, meh (one of the most vaguest terms around along with other natural law terms - again, see Doyle or even Hogan's works) , gets ignored , especially if a conflicting interest is more important.
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This judgment, which was started by Hogan, is unique and I don't it will apply to every case. The circumstances were significant
More over, the State lost because there was no Real Constitutional consideration of the case in the first place. I strongly assume the State used the Lobe 2003 line of caselaw as a copy and paste (numerous other cases involving other members of the family in 2007 with Dunne J and Birmingham J) which is inappropriate without proper consideration of the facts of a case - Even Dimbo 2008 warned the Department about this
Being Judicial Review, and the deference that does be given, if the State had considered, in full the Constitutional rights, and relate them to this unique factual case, and came out with a decision in their favour, the circumstances might have being different in Court - they would, I accept, in light of this case, have a very difficult case to justify why the immigration system must prevail.
It greatly helped that there was no family in the country of origin, and it was proven that not only was the country no safe, but also, more significant, that the parents actually had problems of safety.
The Irish families commitments in Ireland would have saved them from the ECHR Article 8 test of insurmountable obstacles (to go elsewhere)
I don't think there will be many more cases like this , for a while, because, if they have money, and are well to do, I think Shatter, being an actual family law expert unlike Ahern and others, will quietly grant status.
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By the way, Hogan wrote some great articles on why Ireland did not really need the ECHR and the Constitution was fine in or around 2003. You might get some via googling
