Several thousand spouses of EU citizens who are not citizens of the union face deportation, writes Jamie Smyth, European Correspondent
ROLAND CHINEDU and his wife, Marlene Babucke Chinedu, are fighting for the right to live together in Ireland.
Chinedu (28) is one of an estimated several thousand spouses of EU citizens who are not themselves citizens of the union and who face possible deportation from Ireland under tough new immigration rules from the Department of Justice.
Last year, the Government began issuing non-EU spouses with notices of intent to deport after a High Court ruling found it was within its rights to insist that non-EU spouses of EU citizens must live in another EU state before residing here.
The Government said it was correctly implementing an EU directive it passed in April 2007, which lays down that non-EU relatives of an EU citizen must reside lawfully in another EU state before being permitted to work and live here. It introduced the tough measure to crack down on so-called marriages of convenience.
Chinedu and his wife are one of four couples who are applicants in a test case accepted by Europe's highest court, the European Court of Justice (ECJ), which should establish what rights non-EU spouses have to live and travel within the union.
The case was heard yesterday in Luxembourg in front of a grand chamber of 13 judges from across the EU. Ten EU states intervened on behalf of the Government in the case while the European Commission is supporting the four applicants.
Chinedu, a former footballer in Nigeria, came to Ireland and applied for asylum in December 2005. On July 3rd 2006 he married his German wife, Marlene, and they had their first child in February 2008, called Chanel.
Chinedu's asylum application was rejected by the Irish authorities, which have refused to grant him residency rights that would enable him to settle in Ireland with his family. Without this right, Chinedu lives under constant threat of deportation. He and his family also suffer hardship and a host of practical problems because he does not have the legal status to remain in Ireland.
In March the High Court asked the ECJ to make a preliminary ruling on the interpretation of a 2004 EU directive on the rights of citizens of the union and their family members to move and reside freely within the territory of member-states.
Anthony Collins SC, on behalf of Chinedu and his wife, told the ECJ yesterday that Irish regulations implementing the directive did not properly reflect its terms and were an obstacle to free movement of workers.
Lawyers representing the three other couples in the test case advanced similar arguments.
The husband in each of the four cases is not an EU citizen and has never lived lawfully in another EU state. None of the four spouses that have been refused leave to remain in Ireland 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.
Lawyers for the Government 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. According to the Department of Justice, this 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".
At the hearing yesterday lawyers representing several member-states, including Germany, Denmark, Britain and Austria, supported the Government. They fear that a judgment in favour of the four applicants will set a precedent and bolster rights of non-EU spouses to stay in the union. The ECJ is expected to issue a preliminary ruling within a few months.