Right to work if married

carveone

Does anyone know the situation if you are a non-EU citizen married to an EU national? It seems quite bizarre...

In this case a friend is a Spanish girl married to a Brazillian guy. He has Spanish permanent residence (not citizenship) and immigrated from Spain. No problem getting into the country. He headed down to immigration and they said "can't work for 6 months".

Hmmm. That sounds like crap. So I look at the legislation linked to on immigrations web page (http://www.inis.gov.ie/en/INIS/Pages/WP07000068) and go down to the office myself. They said "Can't work, can't live here". When I pointed out that the legislation says otherwise the woman told me to F off and walked away. Nice. I guess they think I'm supposed to be afraid of them or something.

Every place tells me something different. I don't get this - the only opinion that matters is the law. Some immigration official's personal opinion is meaningless (but unfortunately becomes the law). Someone actually had the gall to tell me that "the law is on hold at the moment unless you're an Irish citizen because it was being abused". WTF!!!

The legislation is quite clear - SI 656 of 2006, section 3 qualifies her husband as a "qualifying family member", and section 18 gives him the right to work. What's the problem!!

Conor.

Rebeller

carveone wrote:

They said "Can't work, can't live here". When I pointed out that the legislation says otherwise the woman told me to F off and walked away. Nice. I guess they think I'm supposed to be afraid of them or something.

Unfortunately that's par for the course when dealing with those who work in the immigration services in this state. A large percentage of those working in the Garda National Bureau for Immigration and related services have no interest in operating an efficient, impartial, rule-based immigration policy. Instead they use the job to vent their simmering xenophobic tendencies.

carveone wrote:

Does anyone know the situation if you are a non-EU citizen married to an EU national?

As a third country national (i.e. non-EU member state citizen) married to an EU citizen a Brazilian should qualify as a "family member" of a worker pursuant to Article 39EC (Free Movement of Workers provision) and Directive 2004/38/EC and thus be entitled to reside and work in any EU member state provided his partner (the EU national) is also present in that member state and qualifies under the above community legislation to a right of residence in Ireland.

The right to enter, reside and work by the non-EU national is derivative right. In other words, a third country national does not hold such rights for himself/herself but instead derives such rights from the status of the EU national as a worker, student, jobseeker, economically inactive person etc.

Having a right is one thing, getting the state to respect and recognise such a right is another. I would recommend anyone who is getting the runaround from the immigration authorities to contact a good solicitor who specialises in immigration law for advice.

seamus

Well that legislation lays it out pretty clearly.

Perhaps something is being lost in translation. The legislation requires that a non-EU national obtain work within 6 months or they can be removed from the State. So what you're being told is clearly completely wrong.

This may also be of use:
http://www.citizensinformation.ie/categories/employment/migrant-workers/coming_from_EU_to_work
http://www.citizensinformation.ie/categories/moving-country/moving-to-ireland/rights-of-residence-in-ireland/residence_rights_EU_national

carveone

Rebeller wrote:

The right to enter, reside and work by the non-EU national is derivative right. In other words, a third country national does not hold such rights for himself/herself but instead derives such rights from the status of the EU national as a worker, student, jobseeker, economically inactive person etc.

That's exactly how I see it. Indeed how I read it in the law signed by Mr. McDowell. Man, I thought immigration in Canada were a pain but at least they knew what the law was...

Having a right is one thing, getting the state to respect and recognise such a right is another.

Bingo. And therein lies the rub. Or something. I think the best thing is to ignore immigration and talk to social welfare. After all, if they issue a PPS number to him, then the problem will go away (maybe). Fingers in the ears and go "lalalalala" - it's my Irish solution to an Irish problem :rolleyes:

seamus wrote:

The legislation requires that a non-EU national obtain work within 6 months or they can be removed from the State.

I know! That's the mad thing - the law says not only that you have the right to work, but that you must find work!

Thanks for the links and advice. I should talk to a lawyer I think...

Conor.

Tom Young

Sorry I totally disagree. Its not a derivative right at all.

Seamus has got the lead correct ....

There is a pile of cases under Constitutional law to this effect.

Doctrine of non justiciability etc.

Simply randomly citing EU law without mapping it directly to the Irish constituation is like urinating into a tornado.

VI. Dzodzi
Case 297/88, M. Dzodzi v. Belgium, Judgment of 18 October 1990 (not yet reported)
Madame M. Dzodzi, a Togo national, married a Belgian citizen in February 1987 and spent only two months in Belgium before the death of her husband in July 1987. She contested the administrative act that denied her of any right to stay or reside in Belgium. A Belgian Court of First Instance used Article 177 to clarify the interpretation of several Community Regulations and Directives with potential impact in these national administrative proceedings.
The ECJ found that the Community’s rules regarding workers’ freedom of movement have no application in situations that are ‘purely internal’ to a Member State. Thus, Member States have discretion to grant a right of stay or of residence to a third country citizen who is a spouse of an EC Member State citizen.
Therefore, Member States have a limited free space of ‘purely internal situations’, in which existing EC rules about free movement of workers do not apply. In these cases, the ECJ will not even look at the ‘general economy’ of the national measures and only apply EC law to areas where the national law calls on the Community to do so.

carveone

Tom Young wrote:

Simply randomly citing EU law without mapping it directly to the Irish constituation is like urinating into a tornado.

Nicely put!

I wouldn't have such an issue if it was solely an EU law. The law linked to on the immigration website is an Irish law, sponsored by Mary O'Rourke (don't let that put you off), ratified by both houses of the Oireachtas and signed by Minister McDowell. For officials to just blithly pretend it doesn't exist is, um, perturbing.

As for the constitution, Article 41 should be all you need!

(1) The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

Conor.

ian_m

From what I can gather recently the Dept of Justice is performing a virtual 'lock down' of the country. They are constantly moving the goal posts and they are always finding excuses to deny people visas.

They are practically walking all over communities in this country. I also believe and from discussions with people that they are practically bullying people out of the country. People are being given no other option but to leave. Married couples are not being allowed to be together. Nurses are leaving the country to go back to places like the Philippines.

I believe they do not want to let anyone in anymore. Only what they have to and they are the newer EU accession states.

johnnyskeleton

The latest attack comes from Brian Lenihan, our new shiny Minister for injustice.

Yesterday he criticised lawyers for taking on immigration cases on a no win no fee basis. Those dastardly lawyers and their working for free.

ian_m

Attack? Best of luck to them. If things can be challenged then competition is to be expected. How long was is expected for Ireland to be exclusively Irish?

WUSBDesign

Yes, he can go ahead and get a job - provided his Spanish wife is with him, and he registers for a green card from GNIB (accompanied by wife with supporting documents) every year. Besides, there is a application process where he can get a 5-year green card - ask at GNIB.

In UK, this process is known as a Family Permit.