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22-07-2009, 07:55   #1
Dandelion6
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EU law and non-EU nationals, Irish immigration policy

Hi, I'm studying EU now for the FE1s and am confused about one of the cases discussed in the manual. In Carpenter v Home Secretary, Mrs Carpenter, a non-EU national, overstayed her visa in Britain and then married Mr Carpenter, a British national. The Home Office tried to deport her but this was overruled by the ECJ on the basis of Mr Carpenter's family rights and the absence of any public policy reason necessitating her deportation. The fact she had overstayed was not a sufficient public policy reason.

My confusion is because I know (from work) that marriage to an Irish national is no bar to deportation from Ireland even where the non-EU national has committed no offence other than immigration offences. Has EU law moved on from Carpenter or is there some reason why this Irish practice is deemed compatible with the law?

Please note I am not looking for a debate on the rights and wrongs of the decision or Irish immigration policy in general, just trying to resolve this apparent contradiction between an ECJ ruling and current Irish practice.
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22-07-2009, 10:05   #2
servicecharge
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Possibly I would suggest that the Irish policy just hasn't been challanged.
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22-07-2009, 10:53   #3
golum
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In deporting the spouse of an Irish citizen the Minister would be obliged to have regard to not only Article 8 of the ECHR but also the constitutional rights of the Irish citizen in question. It is possible to deport such a person but in my view it would be extremely unlikely to happen unless there was serious criminality.

That said, marriage to an Irish citizen does not give a non-EEA citizen the automatic right to reside here. Even if the non-EEA spouse were deported the Irish partner could exercise his/her rights by moving to his/her spouse's country of origin in the event of deportation.
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23-07-2009, 07:56   #4
Dandelion6
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In deporting the spouse of an Irish citizen the Minister would be obliged to have regard to not only Article 8 of the ECHR but also the constitutional rights of the Irish citizen in question. It is possible to deport such a person but in my view it would be extremely unlikely to happen unless there was serious criminality.
As I said, I work in this area. I guarantee you that it does happen in the absence of serious criminality.

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That said, marriage to an Irish citizen does not give a non-EEA citizen the automatic right to reside here.
That is the contradiction that I'm trying to resolve.
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23-07-2009, 09:55   #5
golum
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Don't think there is an inherent contradiction. If a person marries an Irish citizen they apply to the Minister for permission to remain on that basis, generally it will be granted. However, there may be cases where other factors will be taken into consideration-such as if the non-EEA spouse was the subject of a DO at the time of marriage.

Essentially, if it appears that the marriage took place merely to avoid removal from the State, permission to remain on the basis of marriage to Irish national will not be granted. The parties must also be able to prove that it is a subsisting marriage and not a "marriage of convenience"-effectively they need only prove that they reside at the same address.

An Irish citizen has rights to family life, privacy etc under the constitution, however these are not absolute rights, and must be balanced against common good considerations.

If the spouse of an Irish citizen was deported in the absence of serious criminality then the marriage took place while the status of the non-EEA partner was precarious. The rights of the Irish citizen spouse would have to be considered when making the Deportation Order but those rights do not over-ride all other considerations.
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24-07-2009, 07:30   #6
Dandelion6
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Golum, I know of cases where the marriage was demonstrably not entered into just to avoid deportation (eg there were children involved, sometimes before the marriage took place), nor was there any criminality and yet deportation proceedings were instituted anyway.

Frankly I don't see how this does not amount to a contradiction:
Carpenter: the non-EU spouses of EU citizens cannot be deported in the absence of sufficient policy reasons, not including mere violations of immigration laws.
Irish practice: the non-EU spouses of EU citizens can be deported merely on the basis that they have violated immigration laws.

Mrs Carpenter would be deportable under current Irish practice.
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25-07-2009, 12:57   #7
walrusgumble
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Originally Posted by Dandelion6 View Post
Hi, I'm studying EU now for the FE1s and am confused about one of the cases discussed in the manual. In Carpenter v Home Secretary, Mrs Carpenter, a non-EU national, overstayed her visa in Britain and then married Mr Carpenter, a British national. The Home Office tried to deport her but this was overruled by the ECJ on the basis of Mr Carpenter's family rights and the absence of any public policy reason necessitating her deportation. The fact she had overstayed was not a sufficient public policy reason.

My confusion is because I know (from work) that marriage to an Irish national is no bar to deportation from Ireland even where the non-EU national has committed no offence other than immigration offences. Has EU law moved on from Carpenter or is there some reason why this Irish practice is deemed compatible with the law?

Please note I am not looking for a debate on the rights and wrongs of the decision or Irish immigration policy in general, just trying to resolve this apparent contradiction between an ECJ ruling and current Irish practice.
these cases won't solve your question but might help you get to the guts of the current situation which is kind of up in the air

check out ackrich v uk , Jia v sweden(2006ish) and the metock v ireland case (2008ish) all ecj cases and although no longer useful see the irish high court case of kumar v minister for justice 2007 - herbert j (i think, be careful metock ruled against this, this was suppose to go to the sc but since metock i take it the matter was moot - but the case would give one an idea of the attitude ireland had, for a period, with certain marriages -) then there is chen v uk (this is a very limited case - involved an irish citizen so worth a look)

metock- might be interesting from an irish persective, in that prior to the case, ireland brought in the freemovement regulation 2006 in order to bring effect to EC Directive 2004 / 38 EC. Ireland provided under reg 3.2 that the non eu spouse had to have lived with their eu spouse legally in other eu state prior to coming to ireland and avail of freemovement. it intended to try and stamp out the idea of marriage of convenience. mcdowell made that crystal clear to the media when legislation came out. the problem was, there was nothing, not a shred of a sentence to be found to allow ireland do this under directive 2004/38 ec. at the time, a high court case in or around may 2007 was heard - kumar, which challenged this. the high court sided with the state, the case received a lot of media attention. it was argued that it went against the face of a recent ecj case of jia and even carpenter, despite the presence of ackrich v uk. the case went to the supreme court, nothing was really heard about it again.

the problem with kumar was, the facts of that case did not and could not and should not be the definitive case to challenge the regulation 3.2. why? not all non spouses were illegal in the state, natually many eu people who go to a different eu state will meet and marry their respective partners in another country, many relationships are genuine, solid and formed over many years. these incidents and other cases which were refused via regulation 3.2 made it clear that kimar was not going to be the conclusive case. in came people like metock. EU law was not completely clear as you had carpetner and jia on one side and ackrich on the other.

basically metock confirms that an eu citizen is entitled to have their spouse with them in a host country so long as he or she is excercising their eu rights. this was a case finlay geoghegan sent to ecj for dtermination, the point is she asked 4-5 specific questions. metock says it does not matter if non eu spouse was legal or not, placing restrictions against an eu citizen and his or her right to move to a host country without their spouse (regardless of nationality) who not encourage them to enjoy their rights to freemovement (better off reading the judgement as oppose to reading this very skinny and off the head comment - as you will see lol).

would i be correct to say that carpeter himself was considered self employed and not a worker and that he was financially capable of looking after his family and not need to rely on state resources? in jia, too, they were able to show that they could afford to have family with them (thus supporting their case that there was no just and reasonable reason to deport) for purpose of debate/discussion (and for me to find out) what would have happened if the families were not as well off? point being here, would all eu states when they are at the council for state be too keen on a general right of residency? i don't think the irish courts have had the opportunity to discuss carpetner yet

the reason i threw in the chen case was because, if you check out the facts you will see that ms chen availed of the irish policy of irish citizen by birth. you will be aware that ireland changed their policy on irish birth shortly after. granted it was not the reason for the changes, but mcdowell when defending himself when challenging comments that he was racist to change the irish laws explained that european member state governments were very very very keen that ireland changed its laws so that it would not be a back door to a potential and feared mass movement (at the time - remember the big chaos in 2002 with the potential of a serious right wing government in france - some of the world cup players were threatening to not play for the national team if they got in) of third nationals into europe

if i am correct, a non eu spouse marrying an irish person and living in ireland would mean that the irish person's rights as an eu citizen would only kick in when they actually exercise their rights to move to another eu country. didn't carpeter move around europe a fair bit because of business commitments, (thus exercising his rights)

the minister would have alot of leeway here than with cases involving eu spouses,(ie there is no legislation as oppose to eu spouses living in host state). one pointed our the constitution is not absolute and article 8 can be a double edged sword. minister takes a very keen interest into the legal status of non eu spouse before the marriage. there was a case, i think in 2002ish, (supreme and high court) known as fitzpatrick (may not be a great example now) which dealt with some of this (would need to look at both the high court and supreme court judgements). each case to be considered on their own facts. have a look at www.inis.gov.ie to see what this state looks for in order to apply for residence.

put it to you this way, this matter is not going to go away

Last edited by walrusgumble; 25-07-2009 at 13:59.
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27-07-2009, 17:20   #8
golum
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Originally Posted by Dandelion6 View Post
Golum, I know of cases where the marriage was demonstrably not entered into just to avoid deportation (eg there were children involved, sometimes before the marriage took place), nor was there any criminality and yet deportation proceedings were instituted anyway.

Frankly I don't see how this does not amount to a contradiction:
Carpenter: the non-EU spouses of EU citizens cannot be deported in the absence of sufficient policy reasons, not including mere violations of immigration laws.
Irish practice: the non-EU spouses of EU citizens can be deported merely on the basis that they have violated immigration laws.

Mrs Carpenter would be deportable under current Irish practice.
Not to be too picky on this, but such deportations are highly unlikely to have ocurred. From what you say the non-EEA partner would also be the parent of Irish citizens. So, you would be looking at a situation in which a person is essentially "anchored" in the State by marriage to an Irish citizen and by being the parent of an Irish citizen. Article 8 and the Constitution would weigh very heavily in such a person's favour and something pretty heavy would be required in order that deportation could be held to be in the interest of the common good. If the person was married and residing with their partner then it would be easy to prove that it was a subsisiting marriage, not to mention children demonstrating the "reality" of the relationship. While proving that a marriage is subsisting may take some time-due to administrative delays but the actual proof consists of little more than submitting utility bills showing that both spouses reside at the same address.Marriages of convenience are becoming a bigger issue-as another poster correctly states-the issue is not going away. These however mainly relate to EU Treaty rights.But in short, the likelihood of a person who had a genuine marriage to an Irish citizen, not to mention an Irish citizen child being deported without there being serious criminality is zero.
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28-07-2009, 07:53   #9
Dandelion6
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But in short, the likelihood of a person who had a genuine marriage to an Irish citizen, not to mention an Irish citizen child being deported without there being serious criminality is zero.
I suppose we're just going to have to agree to disagree at this point, but as I said I'm going on experience through work that says otherwise.
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28-07-2009, 09:36   #10
walrusgumble
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Originally Posted by Dandelion6 View Post
I suppose we're just going to have to agree to disagree at this point, but as I said I'm going on experience through work that says otherwise.
you would fully appreciate the case by case basis. When dealing with marriage to Irish Citizens who have not exercised their Freemovement Rights, yes, the Minister IS going to take issue with the non eu spouse's legality prior to the marriage.

Article 8, as you have noticed and would agree, is a double edged sword, it can go one way or the other. A previous high court and supreme court case in or around 2002ish (Fitzpatrick) made clear that illegality may not help. The Artilce 8 type cases such as Cables, Masood etc (sp) have set out a 6-9 point checklist (if you like) as to the criteria to look out for; examples include whether the spouse was aware of other spouse's legality prior to marriage, are there any unreasonable obstacles to reside in another country and most important, the convention does not require a member state to respect the spouses choice of marriage/residence.



However, as the above post notes, a really good case, one should and must, state out the FULL history of the relationship pre and post marriage, have proof of same, highlight the different cultures, language barriers and possible difficulties with other country's attitudes to foreigners, the responsibilities and committements of the national spouse etc.

you are right, it won't be a 100% guarantee that they will be allowed to stay, even with children, but if there is a solid length of time in ireland, then they have a fighting chance.

i doubt for one single second that any eu state will wish to be dicated on how to deal with non eu spouses who are married to their own nationals. there was some frothing out of the mouth after metock

we all know that case law, facts of life etc have moved forward since the original ideas of freemovement. A majority of cases invoking the principle deal with non eu nationals. the new directive (2004/38 EC) has gone a fair way to deal with this and to consolidate all the other directives and regulations. ireland itself will witness more of these type cases soon,

the annoying thing is that everything in the ECJ is kind of up in the air. Thougth Metock makes clear and actually reaffirms previous cases (eg jia, the anti rascism case against france or beligum Xenorx sP) that legal status does not matter. To do so frustates a persons rights to marry and discourages freemovement.

interesting times
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28-01-2011, 16:48   #11
wanttomarry
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Want to marry

I am British citizen. Residing in Ireland 9 years. Met a Non-EU person in 2008. I am a deserted wife, trying to get a divorce. I would like to marry my boyfriend. We have been together as a couple since 2009. He is in Ireland on visa's legally for 4 years 11 months and has since been trying to get another job. His last employer would not pay for his visa. So he has been in Ireland 6 years. He now has a deportation order. He was not informed of the special visa stamp offered Sept-December 2010 to extend. What can be done? Any advice for the legal eagles?
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