Residency refusal to 1,500 non-EU spouses for review

Sat, Jul 26, 2008, 01:00

THE DEPARTMENT of Justice is to review the cases of more than 1,500 spouses of EU citizens who were refused residency rights on the basis that they were non-EU nationals.

This follows a ruling by the European Court of Justice which found the Government should not prevent spouses of EU citizens who are not themselves EU citizens from living in the Republic.

The ruling should provide residency rights to significant numbers of non-EU national spouses, who have been served with "intent to deport" notices by the Department of Justice. It will also force the Government to amend a 2006 regulation stipulating that non-EU nationals married to EU citizens must live in another member state before moving to Ireland.

It will not affect Irish citizens married to non-EU nationals.

"A non-community spouse of a citizen of the union can move and reside with that citizen in the union without having previously been lawfully resident in a member state," Europe's highest court said in a landmark judgment delivered yesterday.

The court found that the 2006 regulation introduced by the Government is in breach of a 2004 directive on freedom of movement for EU citizens and a core principle of EU citizenship - the right to move and freely reside within the territory of the member states.

This right should be granted to citizens' family members, irrespective of nationality, the court said, which noted that if EU citizens could not lead a normal family life in a host state, their rights and freedoms under the European treaties would be obstructed.

The court also found that the right to residency of non-EU spouses of union citizens was provided through EU law, "irrespective of when and where their marriage took place and of how the national of a non-member country entered the host member state".

The case, named Metock after one of the plaintiffs, was referred to the European Court of Justice by the High Court, which is hearing four appeals against "intention to deport" notices issued to non- EU nationals married to EU citizens.

None of the spouses issued with "notice of intent to deport" orders is married to an Irish citizen, but to a citizen 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, according to the judgment of 13 judges on the European Court of Justice Grand Chamber.

The Government, which was supported by several other EU states including Britain and Denmark in the case, had argued that its regulation was necessary to control immigration into the EU due to "strong pressure of migration".

It warned that providing non- EU spouses of EU citizens with residency rights would have serious consequences for EU states by bringing about a "great increase" in the amount of people able to gain residency.

The court dismissed this argument by stating that its ruling only referred to the spouses of EU citizens and noting that member states could still limit entry into their territory of family members of EU citizens on public health, public security or public policy grounds - as long as a refusal was based on an individual audit of the case. EU states can also refuse access to their territory in cases of "marriages of convenience".

The 2006 regulation does not apply to non-EU spouses of Irish citizens, who must still apply to the Immigration and Naturalisation Service to obtain residency rights. During the case, the Government argued that providing the right to remain to non-EU spouses of other EU citizens would lead to "unjustified reverse discrimination" against Irish citizens, who are not granted this automatic right under European legislation.

The court said any difference in treatment did not fall within the scope of EU law, but it noted Ireland is a party to the European Convention for the Protection of Human Rights and Fundamental Rights, which enshrined right to respect for private and family life.

Brian Burns, a solicitor with Dublin-based law firm Burns, Kelly, Corrigan - which represents one of the applicants - welcomed the ruling as proof that the Irish regulations breached European law and the right of EU citizens to enjoy freedom of movement.