Tuesday, June 28, 2011

EU Treaty Rights Update: What happens in cases of separation or divorce?


We have been receiving many queries relating to the rights of spouses and partners of EU citizens to permanent residency pursuant to the Free Movement Legislation. The queries  have often involved circumstances where the Union citizen is no longer in employment, or where the couple have seperated or are divorced.

Directive 2004/38 and Irish Regulations of 2006 which implement the Directive into Irish law provide rights of permanent residence in the host Member State for family members of Union citizens.

Union citizens acquire the right of permanent residence in the host Member State after a five-year period of residence in accordance with Directive/Regulations, provided that no grounds for expulsion exist against them. The same rule applies to family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years' absence from the host Member State.

Thus, Union citizens and their family members who have resided in the State for a five year period, but not in conformity with the Directive/Regulations, will not be entitled to premanent residence.

The Regulations specifically deal with the situation of a Union citizen and their family members’ eligibility for permanent residence in circumstances where the Union citizen is no longer working in the State. Regulation 13 directs that Union citizens who have been in employment in a host Member State, may apply for a permanent residence certificate when their employment ceases (whether or not they have acquired five years of residency) if they are of pensionable age/retiring, if they have acquired more than 3 years residence and have pursued the activity at least within the last 12 months, or are ceasing employment because of incapacity to work.

Regarding family members, the Regulations state that the family member of a Union citizen who is entitled to permanent residency as explained above, may also remain permanently in the State on the basis they have been residing with the Union citizen.

Regulation 10 and 14 deal with the right of residence/permanent residence for family members in the event of divorce. The Regulation states that a family member of a Union Citizen may retain a right of residence in the State on an individual and personal basis in the event of the Union Citizen’s divorce, in the following circumstnaces;

(i)      Prior to initiation of divorce, the marriage lasted at least 3 years, including one in the State
(ii)     The non EEA spouse has custody of the Union citizen’s children by court order
(iii)    Particularly difficult circumstances exist such as domestic violence
(iv)    A court order for access to a minor child in the State exists

However, the family member must also satisfy the Minister that he is in employment/self employed/self sufficient.

A family member who meets these criteria is entitled to reside independently in the State after the divorce. Regulation 14 directs that such a family member shall then acquire a right to permanent residence after lawfully residing in the State for a period of five years.

A family member who has resided with the Union citizen for five years and wishes to submit an application for permanent residence must use the Form EU 3. This form is specific to those family members who are in a continuing relationship with the Union citizen.  Both the Union citizen and family member are required to sign the form and provide details of their employment status. A document certifying their right to permanent residence will be issued on a successful application. The Member States issue to third country family members permanent residence permits which are valid indefinitely and renewable automatically every ten years, and these must be issued no later than six months after the application is made. Citizens can use any form of evidence generally accepted in the host Member State to prove that they have been continuously resident.

Where the family member is no longer residing with the Union citizen, there is no specific procedure to follow for applying for permanent residence. However, as explained above, a family member may still retain the right to permanent residence, for example where divorce proceedings have been initiated as directed by Regulation 14. A request for permanent residence can be submitted to the Minsiter in writing, with sufficient documentary evidence of residence in the State.

Where there is a marital breakdown, which has not resulted in a divorce, an unusual situation occurs whereby the family member cannot rely on the protections of Regulation 14. We argue that it would be contrary to our Constitution’s recognition of the special position of the family in the State to require a spouse, whose marriage is in difficulty and has led to separation, to divorce in order to avail of the residence protections provided for in Directive 2004/38/EC. Recital 15 of the Directive provides:

“Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.”

We submit that this principle should be purposively construed such that a third country national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. If it is not construed in this way, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence. This is, in effect, an encouragement to divorce, and is contrary to our Constitution.

We hope that this clarifies some of the more complex aspects of EU Treaty Rights applications. We welcome any questions you may have. 

Karen Berkeley, Brophy Solicitors


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