UM v the Minister for Foreign Affairs & anor

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M v the Minister for Foreign Affairs & anor
Respondent/Defendant:The Minister for Foreign Affairs and Passport Appeals Officer David Barry
Court/s:Supreme Court
Citation/s:[2022] IESC 25
Nature of Proceedings:Appeal
Judgment Date/s:02 Jun 2022
Judge: Dunne E.
Category:Citizenship, Citizenship (Loss of), Refugee Law
Keywords:Citizenship, Citizenship (Acquisition of), Citizenship (Loss of), Dependant, Family Member, Refugee, Refugee Status (Withdrawal of)
Country of Origin:Afghanistan
URL:https://courts.ie/view/judgments/489c8348-eefe-4710-ad77-5d07c5900dfe/c6e228ba-8511-496c-bfcf-97e1fb6be228/2022_IESC_25_Dunne%20J.pdf/pdf

Facts: UM was born in Galway in June 2013. His father, MM, an Afghan national, was declared a refugee in in Ireland in 2006. In June 2013, MM was informed by the Department of Justice of an intention to revoke his refugee status on grounds including that he had returned to Afghanistan and stayed there for two months and that … Read More

Principles:Revocation of refugee status has prospective effect. A residence status conferred by the State on a parent based on false or misleading information could, under the terms of the relevant legislation, be included for the calculation of the period required to confer an entitlement of citizenship to their child.
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Subhan v Minister for Justice

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Subhan v Minister for Justice
Respondent/Defendant:Minister for Justice
Court/s:Court of Appeal
Citation/s:[2019] IECA 330
Nature of Proceedings:Judicial review/Appeal
Judgment Date/s:19 Dec 2019
Judge:Baker M
Category:Citizenship, Immigration law Free movement
Keywords:Dependant, Family Member, Free Movement, Freedom of Movement (Right to), Non-EU National
Country of Origin:United Kingdom, Pakistan.
URL:https://www.courts.ie/acc/alfresco/19bc7313-7173-491a-b089-d476d2391f77/2019_IECA_330_1.pdf/pdf#view=fitH

Facts The applicants were both born in Pakistan and were first cousins. The first applicant became a naturalised British citizen and subsequently moved to the State in exercise of his EU Treaty Rights. He applied for permission for his first cousin to join him in the State as a permitted family member on the basis that he was a member … Read More

Principles:A person who cohabits or lives under the same roof as a Union citizen is not, merely by reason of that cohabitation, to be considered a member of the Union citizen’s household. The key task of the decision maker was to ascertain whether the cohabitation or co-living arrangements are more than merely convenient, and whether the non-Union citizen family member is part of a cohesive, long term, coherent and single unit which might generally be called a “household”.
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VK v Minister for Justice; Khan v Minister for Justice

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VK v Minister for Justice; Khan v Minister for Justice
Respondent/Defendant:Minister for Justice
Court/s:Court of Appeal
Citation/s:[2019] IECA 232
Nature of Proceedings:Judicial review/Appeal
Judgment Date/s:30 Jul 2019
Judge:Baker M
Category:Immigration law
Keywords:Dependant, Family Member, Free Movement, Freedom of Movement (Right to), Non-EU National
Country of Origin:Germany, Egypt, United Kingdom, Pakistan.
URL:https://www.courts.ie/acc/alfresco/eff2dccb-f5cd-42a0-8e62-acccffa895b6/2019_IECA_232_1.pdf/pdf#view=fitH

Facts: The VK case involved a German citizen who was married to an Egyptian citizen. They resided in the State under EU Treaty Rights and submitted an application to allow the wife’s Egyptian parents and sisters join them in the State as qualifying family members who were dependent on them. In the Khan case, the applicants were UK citizens who … Read More

Principles:The test for dependence is one of EU law and an applicant must show, in the light of his financial and social conditions, a real and not temporary dependence on a Union citizen. The concept of dependence is to be interpreted broadly and in the light of the perceived benefit of family unity and the principles of freedom of movement.
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SS v Minister for Justice

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SS v Minister for Justice
Respondent/Defendant:Minister for Justice
Court/s:Supreme Court
Citation/s:[2019] IESC 37
Nature of Proceedings:Habeas corpus/Appeal
Judgment Date/s:27 May 2019
Judge:Charleton P
Category:Immigration law
Keywords:Dependant, Family Member, Free Movement, Freedom of Movement (Right to), Non-EU National
Country of Origin:Romania, Pakistan.
URL:https://www.courts.ie/acc/alfresco/57e4e25a-b338-4d52-a000-096d20f15854/2019_IESC_37_1.pdf/pdf#view=fitH

Facts On 30 January 2018 the applicant/appellant sought a residence card, claiming to be a qualifying family member dependent on the alleged spouse of his father, she being an EU citizen. The applicant was a 26 year old Pakistani national who claimed to be a family member of the Romanian lady whom his father had purported to marry in November … Read More

Principles:Under the European Communities (Free Movement of Persons) Regulations 2005, an applicant for a residence card as a qualifying family member of an EU citizen has a right to remain in the State until that application is determined.
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FB v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2014] IEHC 427
Nature of Proceedings:Judicial Review
Judgment Date/s:05 Sep 2014
Judge:Barr J.
Category:Refugee Law, Residence
Keywords:Dependant, Family Reunification, Refugee, Residence
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/bf1d07a3-4778-4602-9396-1f1df5807ca4/2014_IEHC_427_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts: The applicant was an elderly Nigerian national who had been granted refugee status in Ireland. She applied for family reunification with two alleged granddaughters who were said to have been dependent on her in Nigeria, pursuant to s. 18(4) of the Refugee Act 1996. She claimed that she had left them in the care of an individual when she … Read More

Principles:

In assessing whether a person is dependent on an applicant for family reunification pursuant to s. 18(4) of the Refugee Act 1996, regard must not be had solely to considerations of financial dependence.

Where financial dependence is considered, it will not necessarily be sufficient to consider the average income in the subject of the application’s country of origin with a view to determining the extent to which remittances from the applicant give rise to dependence. Financial burdens on the subject, and the extent to which they are alleviated by the remittances, also need to be considered.

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AAM v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2013] IEHC 68
Nature of Proceedings:Judicial Review
Judgment Date/s:15 Dec 2013
Judge:Clark J.
Category:Refugee Law, Residence
Keywords:Dependant, Entry (Refusal of), Family Reunification, Refugee, Residence
Country of Origin:Somalia
URL:https://www.courts.ie/acc/alfresco/abc8f4a8-c6d0-4f06-9af0-c08a0011f4dd/2013_IEHC_68_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant, a national of Somalia, had been granted refugee status in the State, and he applied for family reunification pursuant to Section 18 of the Refugee Act 1996 with his mother and four siblings, who lived in a camp in Somalia. He sent them approximately €157 per month. Whilst the Minister accepted the claimed family relationship, his application … Read More

Principles:

In deciding applications for family reunification made on the basis of dependency, it is not a relevant consideration when deciding on the issue of dependency that the applicant may not be able to maintain the family members who are the subjects of the application in the State. Additionally, when considering whether or not financial transfers made by the applicant to the subjects of the application tend to show that they are dependent on him or her, it is appropriate to use some kind of “yardstick” by reference to which the likely impact of such transfers on the subjects can be measured. The lack of such a “yardstick” may mean that any refusal to accept that the transfers give rise to a situation of dependency would be set aside for want of a rational basis.

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Wang (a minor) v Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Law Reform
Court/s:High Court
Citation/s:[2012] IEHC 311
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Jul 2013
Judge:Cooke J
Category:EU Treaty Rights, Residence
Keywords:Adult, Child, Dependant, EU Treaty Rights, Family Formation, Family Member, Freedom of Movement (Right to), Member State (Remain in the), Minor, Non-EU National, Non-national, Residence, Residence Permit, Union Citizen
Country of Origin:China / Hungary
URL:https://www.courts.ie/acc/alfresco/86f5c09d-0e67-49c9-a8bd-7b4b05b39981/2012_IEHC_311_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The second applicant was a Chinese national who arrived in the State on a student visa in 2004. She met a Hungarian national in 2005 and they married in 2006. She was subsequently granted permission to remain in the State for a five-year period under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 as the  wife … Read More

Principles:

It was not arguable that a parent could claim to be a dependent of a three year old EU citizen child and an adult could not be the dependent of a child. 

It was arguable that a parent might be considered a member of the household of a minor EU citizen and the term household was open to the interpretation that if one individual is an EU citizen all members of the group could be regarded as equal members of the household.

In applying the Chen principles and considering the question of self-sufficiency within those principles, it must be clear what test of self-sufficiency the Minister was applying. The Minister must reach a reasonable and proportionate conclusion in assessing an application as to whether the Chen conditions are met.

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A v Minister for Justice [2013] IEHC 356

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Respondent/Defendant:Minister for Justice
Court/s:High Court
Citation/s:[2013] IEHC 356, 19 July 2013
Nature of Proceedings:Judicial Review
Judgment Date/s:19 Jul 2013
Judge:MacEochaidh J.
Category:Refugee Law, Residence
Keywords:Dependant, Entry (Refusal of), Family Reunification, Refugee, Residence
Country of Origin:Iraq
URL:https://www.courts.ie/acc/alfresco/6e3cfc21-3574-48f1-92f4-b36b2efaf939/2013_IEHC_356_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant was an Iraqi national who had been granted refugee status in the State. He made a family reunification application in respect of his parents and two sisters, pursuant to Section 18 of the Refugee Act 1996, which gives the Minister for Justice discretion to grant permission to a dependent member of the family of a refugee to … Read More

Principles:

In determining applications for family reunification based on dependency, the Minister is obliged to have regard to all of the evidence relating thereto, including any evidence showing that the subjects of the application are not able to maintain themselves fully or of transfer of funds from the applicant to the subject of the application. Determinations  refusing applications for family reunification must be properly reasoned, and if they are based on errors of fact or speculation,  they are liable to be set aside by the court.

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AMS (Somalia) v Minister for Justice and Equality; AK (Afghanistan) v Minister for Justice and Equality

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AMS (Somalia)
Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2012] IEHC 72
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Feb 2012
Judge:Cross J.
Category:Refugee Law, Residence
Keywords:Dependant, Entry (Refusal of), European Convention on Human Rights (ECHR), Family Life (Right to), Family Member, Family Reunification, Refugee, Residence, Residence Permit
Country of Origin:Somalia Afghanistan
URL:https://www.courts.ie/acc/alfresco/0728a8d8-adb0-461d-8e04-8282437f77a0/2012_IEHC_72_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The first applicant was a national of Somalia and was recognised as a refugee in the State in 2009. He applied to the Minister under Sections 18(3) and (4) of the Refugee Act 1996 for family reunification with his wife, mother and four minor siblings. All had been living in a refugee camp outside Mogadishu and, at the time … Read More

Principles:

For the purposes of family reunification part of the investigation of the family includes an assessment of the domestic circumstances of the dependent family member, not the refugee. 

The Minister’s decision must, per the Supreme Court decision in Meadows v Minister for Justice, disclose at least the essential rationale on foot of which the decision is taken. 

In exercising his discretion to grant permission to dependent family members to enter and reside in the State there must be a separate consideration by the Minister of the refugee and the different dependent family members and their individual personal circumstances. The Minister must carry out a balancing exercise in assessing the proportionality of his decision upon a refugee’s ECHR rights.

If the Minister had a fixed policy  as to family reunification of dependent family members of refugees he should state it so that it could be examined as being reasonable.

Section 18(4) of the Refugee Act 1996 did not contemplate a “sponsorship” requirement and any such requirement would require a legislative amendment.

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AO v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:17 January 2012, 2012 IEHC, Unreported
Nature of Proceedings:Application for a stay on the implementation of a deportation order pending the determination of an application for leave for judicial review.
Judgment Date/s:17 Jan 2012
Judge:Hogan J.
Category:Deportation
Keywords:Child, Citizenship, Dependant, Deportation, Deportation Order, Family Life (Right to), Removal Order, Third-Country national found to be illegally present, Union Citizen
URL:https://www.courts.ie/acc/alfresco/bf3ea1b6-e98f-447c-a9c1-4eecdc63deea/2012_IEHC_8_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

The Applicant sought a stay on the implementation of his deportation order.  The Court had vacated an earlier interim injunction that the Court had granted after it transpired that the Applicant had failed to disclose a material fact, (i.e., that he had already applied, unsuccessfully, to the High Court for injunction). The Applicant presented himself to immigration officials as Mr … Read More

Principles:
  1. Where the non Irish national parent of an Irish child seeks an injunction restraining his or her deportation, the Court cannot not look at the matter from the point of view of the non national parent, but must look at it from the perspective of the child.
  2. Article 41.2 of the Constitution of Ireland implies that all children, irrespective of the marital status of their parents, have the same equal rights to that which the Constitution postulates as representing the fundamental rights of children in a family setting,
  3. Non marital Irish children must be deemed to have an unenumerated personal right by virtue of Article 40.3.1 to have the same rights as children whose parents are married.
  4. Non marital Irish children have a right to the care and company of their parents.
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X Adeoye & Ors v Minister for Justice, Equality and Law Reform & Ors

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Respondent/Defendant:X Adeoye & Ors
Court/s:High Court
Citation/s:Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:25 Nov 2011
Judge:Hogan, J
Category:Citizenship, Deportation
Keywords:Absconding, Citizenship, Country of Origin, Dependant, Deportation, Deportation Order, Entry Ban, Expulsion, Expulsion Decision, Expulsion Order, Family Life (Right to), Family Member, Family Unity (Right to), Foreigner, Minor, Non-EU National, Non-national, Removal Order
Country of Origin:Nigeria
Geographic Focus:Ireland

The Adeoye family sought to quash a decision of the (then) Minister for Justice, Equality and Law Reform (the Minister) pursuant to s. 3(11) of the Immigration Act 1999 to refuse to revoke Mr Adeoye’s deportation order. Mr Adoeye, an architectural student from Nigeria married to an Irish citizen, who had been unsuccessful in an asylum application, and who had … Read More

Principles:It behoves the judicial branch of government to ensure that the fundamental rights in respect of marriage and family life are taken seriously and given “life and reality”. In deciding whether to revoke a deportation order made against the spouse of a citizen, the deciding Minister must weigh the rights of the applicants fairly.
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Case C-256/11 – Dereci v Bundesministerium fur Inneres

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Respondent/Defendant:Bundesministerium fur Inneres
Court/s:ECJ
Citation/s:[2011] ECR I-0000
Nature of Proceedings:Preliminary ruling under Article 267 TFEU
Judgment Date/s:15 Nov 2011
Judge:Grand Chamber of the Court of Justice of the European Union
Category:EU Treaty Rights
Keywords:Child, Dependant, EU Treaty Rights, Family Life (Right to), Regularisation, Residence Permit
Country of Origin:Austria
URL:http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CJ0256:EN:HTML
Geographic Focus:Europe

The applicants were third country nationals who wished to live with their EU, and Austrian, citizen family members resident in Austria. The Union citizens had not exercised their free movement rights, and were not dependent on the applicants. All applicants had their applications for residence permits refused. The applicants and the Union citizens wished to live together, but there was … Read More

Principles:

European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.

If, in considering, inter alia, a refusal of a residence permit in respect of a third country national, a national court considers that the situation is covered by EU law, it must examine whether the residence permit refusal undermines the right of respect for family life under Article 7 of the Charter. On the other hand, if the national court takes the view that the situation at issue is not covered by EU law, it must undertake an examination under Article 8(1) ECHR.

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BJSA (Sierra Leone) v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:12 October 2011, 2011 IEHC 381, Unreported
Nature of Proceedings:Hearing re an interlocutory injunction pending a determination of leave to seek judicial review.
Judgment Date/s:12 Oct 2011
Judge:Cooke J.
Category:Refugee Law
Keywords:Child, Citizenship, Dependant, Deportation, Deportation Order, Family Life (Right to), Protection (Application for International), Protection (Subsidiary), Refugee, Removal Order, Third-Country national found to be illegally present, Union Citizen
Country of Origin:Sierra Leone
URL:https://www.courts.ie/acc/alfresco/9b80483a-8d32-45b8-b7eb-39fb194500bd/2011_IEHC_381_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

In this case the applicant sought an interlocutory injunction restraining deportation pending the determination of an application for leave for judicial review of, inter alia, a decision refusing to grant him subsidiary protection on, essentially, two grounds: that the decision was invalid because the procedure in place under the Irish Regulations failed to properly transpose Article 4.1 of Directive 2004/83 … Read More

Principles:
  1. There is no deficiency in the Irish asylum legislative regime in respect of the failure to expressly transpose the provision in Article 4.2 of Directive 2004/38 re cooperation into Irish legislation.
  2. The co-operative nature of the first instance assessment phase in the Irish asylum process is reflected in ss. 8(1); 11(1); 11(2); 11C; and 16(6) of the Refugee Act 1996 as amended. 
  3. The deciding authority is not wholly relieved of any obligation of co-operation in appropriate cases. The process must conform to the normal rules of fair procedures.
  4. There is no requirement that a draft subsidiary protection decision be submitted to an applicant for comment before it is adopted.
  5. The right to an effective remedy by way of an appeal under Article 39 of the Directive 2005/85 applies only to subsidiary protection if it forms part of a unified procedure.
  6. There is no superior remedy in Irish law by way of appeal against a first instance determination of an asylum application, such that the procedures under the Refugee Act 1996 do not constitute a comparator with subsidiary protection for the purpose of applying the EU principle of equivalence.
  7. It is only since the requirements of Directive 2005/85 and, in particular, Annex 1, became effective in Irish law that the Commissioner is a “determining authority”, and that there is a right of appeal against a determination of the Commissioner to the Tribunal. Insofar as the provisions of the 1996 Act provide a two-stage determination for an asylum application including a right to an effective remedy by way of an appeal, this is only because of the manner in which the State adapted the arrangements of the 1996 Act in order to comply with the requirements of Directive 2005/85.
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HSA v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:25 Mar 2011
Judge:Cooke J.
Category:Refugee Law
Keywords:Dependant, Family Reunification, Refugee, Refugee Law
Country of Origin:Somalia
URL:http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/91e50db428610cfb8025788d004a8c03?OpenDocument
Geographic Focus:Ireland

The Applicant was a Somali refugee granted asylum in Ireland in April 2008. In Somalia, he had been married with seven children. He had also cared for his mother, an adult sister and three children of his deceased brother. His wife, mother and two of his children were killed in the Somali civil war. He left Somalia in 2007 leaving … Read More

Principles:

In determining an application under s. 18(4) of the Refugee Act 1996, the Minister must first decide whether the subjects are dependent family members as a matter of fact. Only then does the issue of discretion arise,

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TM & Ors v Minister for Justice, Equality and Law Reform

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Moylan
Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2009] IEHC 500
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Nov 2009
Judge:Edwards J.
Category:Citizenship, EU Treaty Rights
Keywords:Citizenship, Dependant, EU Treaty Rights, Family Member, Family Unity (Right to), Residence Permit, Union Citizen, Visa
Country of Origin:China (PRC)
URL:https://www.courts.ie/acc/alfresco/9094e8fe-2526-4cf9-b4f4-d5fedb9c794f/2009_IEHC_500_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
References:Contrast with Advocate General's Opinion in Case C-34/09 Ruiz Zambrano v Office National de l'Emploi

The first and second Applicants were a wife and husband respectively, the third and fourth Applicants their children, all Irish citizens. The fifth Applicant, L.W., was the mother of the first Applicant and the grandmother of the third and fourth Applicants. She was a Chinese citizen and a widow. She travelled to and from the State a number of times … Read More

Principles:

The EU has always recognised the principle of reverse discrimination. Ireland is entitled to treat its own citizens less favourably than other Union citizens who are in a position to rely on specific EU Treaty rights which Irish citizens are not in a position to avail of.

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