EU TREATY RIGHTS

RETENTION OF RESIDENCY PURSUANT TO EUTR IN CASE OF DIVORCE/SEPARATION

We confirm that we have received a positive decision from the EUTR Section confirming that our client may retain residency in the State on the basis of EU Treaty Rights on the grant of a divorce from his EU National spouse. In March 2011 we had notified the Department that our client was the holder of residence card pursuant to Directive 2004/38/EC and the 2006 Regulations since December 2007, having been married to an EU national since 2004.  We further notified the Department that he and his wife were recently divorced. We called on the Minster to confirm our clients right to retain his right to reside in the State.  We relied on Article 13 (2) (a) of Directive 2004/38/EC, as implemented by Regulation 10 (2) (b) of the 2006 Regulations, which provides that family members of Union Citizens shall not entail the loss of the right of residence in circumstances where, prior to the initiation of the Divorce, the marriage lasted 3 years, one year of which was in the Member State.  By decision of July 2011, the Minister responded in the following terms, “We can confirm that your client retains his current right of residence”.

We welcome this decision. However, we now call on the Minister to issue similar decisions in respect of pending applications where the applicant is separated, but not yet divorced from their EU National spouse. 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 Article 13/Regulation 10. 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.

Brophy Solicitors

4/8/11