EU sets limits on Government's 'sham marriage' investigations

IRISH GOVERNMENT investigations into “sham marriages” must not encroach on European citizens and their non-EU spouses’ right to move freely in the EU, say new guidelines.

The guidelines due to be published tomorrow by the European Commission also say the same fundamental right of free movement in the EU also applies to non-EU partners in “durable relationships” who are not married.

The guidelines have been drawn up in response to complaints voiced by Ireland and Denmark following a landmark ruling by the European Court of Justice (ECJ) in 2008 in the Metock v Ireland case.

This test case was taken by four married couples living in Ireland who faced deportation. In each case the four EU citizens married asylum seekers, whose request for leave to remain in the Republic was subsequently rejected by the Minister for Justice. The Government argued unsuccessfully that it should be allowed to deport non-EU spouses who had not lived in another EU state prior to arriving in Ireland, to combat “marriages of convenience”.

But the ECJ dismissed its concerns, ruling that the Irish authorities had incorrectly transposed the 2004 directive on free movement and was unfairly deporting non-EU spouses.

Following the judgment, the Government asked the commission to redraft the 2004 directive to enable it to deport non-EU spouses when it considered they were involved in “sham marriages”. The commission refused but promised to publish guidelines.

“Measures taken by member states to fight against marriages of convenience may not be such as to deter EU citizens and their family members from making use of their right to free movement or unduly encroach on their legitimate rights,” say the draft guidelines, which will be debated today by all 27 EU commissioners.

The commission says freedom of movement is one of the foundations of the EU. It warns that it will use its powers under the treaty, which is EU code for taking legal action.

The new guidelines say the right of free movement should be extended to “partners in a durable relationship”.

“The requirement of durability of the relationship must be assessed in the light of the objective of the directive to maintain the unity of the family in a broad sense,” they say.

The commission leaves it up to member states to set a time period under which a partnership can be considered durable. Some campaigners may be concerned that this will allow states to continue to refuse some non-EU spouses leave to stay in the country.

But the guidelines say other criteria must be taken into account, such as whether a couple has a joint mortgage.