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European court judgement on residency rights due

Metro Éireann, July 2008

By Catherine Reilly

A EUROPEAN Court of Justice (ECJ) decision on the residency rights of non-EU spouses married to EU nationals is imminent. The matter was referred to the ECJ in March by Justice Mary Finlay Geoghegan at Ireland’s High Court, and was heard at the ECJ on 3 June. A decision is expected next month.

An earlier High Court case, which was heard by Justice Michael Hanna, ruled against the residency rights of an Indian national married to an Estonian he had met in the UK (known as the Kumar case). The Indian national had a chequered immigration history. The Department of Justice declined his residency application (through marriage to an EU citizen/EU treaty rights) on the basis that he had not submitted evidence of lawful residence with his spouse in another EU member state before coming to Ireland. This requirement is part of a statutory instrument (secondary legislation) introduced by Ireland, known as SI 656/2006.

Justice Hanna upheld the Department of Justice’s adherence to the statutory instrument. That decision was appealed to the Supreme Court and is yet to be heard. Despite the existence of an EU directive issued in 2004 which states that non-EU family members of EU citizens should be automatically permitted to work and live in the EU, the Department of Justice has maintained that it is adhering to EU regulations.

In May 2007, following Justice Hanna’s judgement, hundreds of non-EU spouses of EU citizens in Ireland were issued with ‘notice of intention to deport’ letters. Asked if deportations were proceeding, a Department of Justice spokesperson commented: “It is important to note that these are cases in which the non-EEA applicant illegally entered the State in the first instance. These letters include a number of options for the individual concerned, one of which is the possibility of making further written representations to the Minister for Justice, Equality and Law Reform for permission to remain in the State.” The spokesperson said that deportations may proceed in cases where permission to remain is not granted, and that representations are currently under examination.

It is understood that non-EU applicants for residency through marriage – who applied while still legally resident in Ireland – have been issued with temporary residence permits. This is “by way of damage reduction”, one legal observer remarked to Metro Éireann. Cases have clogged up Irish courts, and many of those affected have attached damages claims, in view of lost salaries, for example.

Currently, the Department of Justice is considering approximately 1,100 applications for residency under EU treaty rights, approximately half of which provide evidence of prior legal residence in another EU country.

This article was produced with the assistance of the Forum on Migration and Communications (FOMACS)