EU court overturns Irish ban on non-EU spouses

Fri, Jul 25, 2008, 01:00

Europe’s highest court has ruled that spouses of European Union citizens who are not themselves citizens of the EU may live in Ireland.

The case involved four couples who appealed a decision by the Government to deport them because the husband in each case is not an EU citizen and has never lived lawfully in another EU state.

The ruling delivered this morning by the European Court of Justice said Irish laws, requiring a spouse from a outside the EU to have lived in another member state, were incompatible with a directive on the free movement of EU citizens.

None of the spouses issued with “notice of intent to deport” orders are married to Irish citizens but are married to citizens of other EU states. In each case the couples were married in the Republic and the non-EU national husbands had all unsuccessfully applied for asylum.

The four couples lodged an appeal with the High Court against the “notice of intent to deport” orders, arguing they breach EU law, and particularly their right to live and work in any EU state. The High Court referred legal questions arising from the cases to the ECJ.

The ECJ ruling sets a precedent for thousands of other couples residing in Ireland and, more widely, better defines the rights of EU states to manage their own immigration policies.

Under the EU directive on free movement of citizens, all citizens may reside in another member state as workers or students if they have sickness insurance and sufficient funds that they do not become a burden on the social welfare system.

Family members of a citizen of the European Union also have the right to move and reside in the member states with that citizen.

The ECJ ruled today that application of the directive is "not conditional on their having previously resided in a member state".

"The directive applies to all union citizens who move to or reside in a member state other than that of which they are a national, and to their family members who accompany them or join them in that member state. The definition of family members in the directive does not distinguish according to whether or not they have already resided lawfully in another member state," the ruling stated.

The court also held that a "non-community" spouse of an EU citizen who accompanies or joins that citizen in the host country can benefit from the directive "irrespective of when and where their marriage took place and of how that spouse entered the host member state".

The Department of Justice had argued that a previous ECJ judgment in 2003 in the case of Hacene Akrich provides the legal basis to deport non-EU spouses of EU citizens.

The Department claimed last month that the Akrich case stated that to avail of the freedom of movement of EU workers and family members a “non-EU citizen must be lawfully resident in a member state when he moves to another member state to which the citizen of the Union is migrating or has migrated”.

Welcoming the judgement this afternoon, the European Commission said the ruling clarified the rights of free movement of European Union citizens and their family members throughout the EU.