We act for many clients who are making applications for permanent residence cards pursuant to of Directive 2004/38/EC and the EC (Free Movement of Persons) (No 2) Regulations, 2006 as amended.
Many of these applications are submitted on the basis that the applicant complies with the criteria of Article 16 (2) of the Directive – that is that he or she has resided legally with the Union citizen in the State for a continuous period of 5 years. Similarly, Regulation 13 (6) refers to that family member “who has resided with the Union citizen in the State”
We submit that the requirements if Article 16/Regulation 13 is that both the EU and the non EU family member reside in the State for a five year period, but not necessarily that they co habit for the give year period. However, the Department of Justice continue to seek evidence that the couple resided together in the same household for that period.
We would refer to the case of PM (Turkey)  UKUT 89 (IAC) in which the Upper Tribunal found that in the light of its objects and purpose Article 16(2) of the Citizens Directive is intended to afford all family members the right of permanent residence after five years residence in the host state where the EEA national has resided, whether or not they had actually cohabited throughout that period.
We would also point out that Article 7 (2) (and Regulation 6(3) (a)) both direct that a non EU spouse of an EU national shall be entitled a residence card if the EU spouse is exercising his/her EU Treaty Rights. Neither the Directive nor the Regulations direct that they be co habiting in order to be entitled to the initial five year residence card. Therefore, if the applicant has complied with the terms of Article 6/Regulation 6 for the period of their marriage, regardless of whether they were co habiting or not, it would be illogical to find the non EU citizen is then ineligible for the permanent residence card.
These points were assessed by Mr Justice Cooke of the High Court in the case of Mohamud and Muna Abdulle Ali vThe Minister for Justice, judgement dated 18th February 2011.
Mr Justice Cooke held that requesting documentation that Ms. Ali had lived resided with Mr Mohamud was unlawful and unnecessary, since no such requirement had been directly stipulated in the Regulations or the Directive. Regulation 10(2) (b) even states that a non-EU national may retain the right to reside even in the event of divorce or annulment if the couple had been married for three years, including one year in the State. Mr Mohamud and Ms. Ali qualify under this stipulation as well. Therefore, Justice Cooke ruled that it was not a requirement that the non-EU national be residing in the same house with the EU national in order to qualify a residence card based on their EU Treaty Rights. The Court saying that it was a requirement is a mistake in law, and Justice Cooke quashed the refusal order.