Thursday, August 11, 2011



We were delighted to receive a positive decision in a case concerning the non-EU spouse of an EU national who had separated from his wife in the State after almost 6 years of marriage. 

We submitted that our client was entitled to rely on Article 16 (the permanent residency article) of the Directive having resided with his wife in the State for 5 years.  He and his wife had not divorced and his wife remained a worker in the State.  We also sought to rely on Article 13 (retention of the right to reside) of the Directive given that our client has evidence of marriage to an EU national for 3 years with one year of continuous residency in the State.

Such applications present a series of problems.  When preparing this application, we discovered that Form EU 3 for Permanent Residency is completely inappropriate for a person in our client’s position. Both the non-EU applicant and his spouse/former spouse are requested to sign the form and the EU spouse is expected to provide 5 years worth of documentation to prove his/her residency and activities in the State.  Our client’s relationship had broken down and it was onerous and unjust to expect him to call on his wife for assistance with his application for permanent residency in the State.  We submitted that our client’s right to retain his residency in the State was on an individual basis in accordance with Article 13. 

One other glaring defect with such cases is that neither the Directive nor the Regulations provide for situations where spouses who have benefited under the Directive have separated and have not divorced.  We put forward that the deciding officer must act in accordance with our Constitution with a view to protecting spouses whose marital relationship has broken down but who have not divorced.  To decide otherwise would be contrary to the Constitution and the protection of the institution of marriage in this State. 

Our client has been a worker in the State for almost ten years.  We are pleased that the Minister sought to purposively construe the Regulations and Directive in light of our client’s circumstances.  Our client can now finally resolve his marital problems in the State and has been permitted to work and reside in the State for the next ten years.

Brophy Solicitors

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