Wednesday, October 12, 2011

EU TREATY RIGHTS: RIGHTS OF RESIDENCE IN THE EVENT OF SEPARATION


We are currently challenging a decision of the Department to revoke our client’s permission to reside in the State in circumstances where he has lived with his Union citizen wife for five years and is now separated but not divorced. As we have noted in our previous blog posts, there appears to be a lacuna in Directive 2004/38/EC and the Regulations with respect of residency rights of third country national spouses who have separated from their Union citizen husband or wife but have not yet obtained a divorce. This is one such case in which we are arguing that our client retains his right to reside despite the separation pursuant to Article 13, Directive 2004/38/EC. 

Our client is a non-EEA national who married and resided with an Union citizen between September 2005 and March 2010. During the period of their marriage, both husband and wife were working or studying. The couple separated in March 2010 and our client’s wife has now left the State. The Department then sought to revoke our client’s permission to reside in the State on the basis that his marriage to an Union citizen had broken down. We responded making submissions that our client retains his right to reside in the State pursuant to Article 13 of Directive 2004/38. 

Article 13(2) relates to the right of residence by non-EEA family members in the event of divorce, annulment of marriage, or termination of registered partnership. The relevant section states:  
2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State ...

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.

On behalf of our client, we are arguing that it would be contrary to our Constitution’s recognition of the special position of the family in the State, the need to protect the institution of the family, and the restrictions which the State impose on the obtaining of divorce (including the need to live apart for four years), 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. 

In arguing that the residency protections in Directive 2004/38/EC should extend to our client who is separated, but not divorced, we are relying on Recital 15 of the Directive that 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.”

It appears from the recital, that the provisions of Article 13 of Directive 38/2004/EC should be purposively construed such that a third national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. Otherwise, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence which appears to be an encouragement to divorce, and is contrary to our Constitution. A further difficultly in Ireland is that under Irish law a couple must live apart for four years before a decree of divorce can be granted.

We will keep you updated on the progress of our challenge. If you have any questions or comments, please contact us!


Brophy Solicitors
12.10.11

13 comments:

  1. hi ,i have similar situation here ,im Egyptian married to polish for nearly 2 and half year ,but we are not happy anymore together and we live in different houses but in the same country (Ireland) am wondering if they can cancel my residence card (4eufam) and deport me back in case if we divorce or if i told them that we no longer live together (my residence card and visa will expire in 2015 ,will be great if you can give me some information here

    ReplyDelete
  2. Thank you for your interest in our Immigration Blog. I confirm that your query has been reviewed by one of our Immigration Solicitors. We would be happy to arrange a legal advice consultation with you. Please contact us on info@brophysolicitors.ie to provide your contact details so that we can make the necessary arrangements.

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  3. hi my email is elcomansh@gmail.com and i tried to contact u throw your email but there was no answer ,,,,,

    ReplyDelete
  4. Dear Elcomansh,

    Please contact our office by telephone and we will arrange a consultation to meet with you. Our contact number is 01 6797930.

    Kind regards,

    Brophy Solicitors

    ReplyDelete
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  11. Hi I got married in 2012 I can to Ireland in 2013.me and my wife w broke up after 7 months in Ireland. We are separated not divorced yet.my wife reported me to Garza and immigration office .and now I got letter said that since my wife left the country my stamp4 card has removed.and I have 15 days to appeal.I'm also in relationship with Irish partner we been living together over 2 years now .plz I need to know is there a chance for me if I want to keep my card in Ireland?

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  12. Hi I got married in 2012 I can to Ireland in 2013.me and my wife w broke up after 7 months in Ireland. We are separated not divorced yet.my wife reported me to Garza and immigration office .and now I got letter said that since my wife left the country my stamp4 card has removed.and I have 15 days to appeal.I'm also in relationship with Irish partner we been living together over 2 years now .plz I need to know is there a chance for me if I want to keep my card in Ireland?

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