Originally Posted by Dandelion6
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