The opinion of Advocate General Bot was delivered on the 14th May 2014 in response to the Irish High Court’s request to the Court of Justice for a Preliminary ruling in the case of Ogieriakhi v Minister for Justice and Equality, Ireland, (Case C‑244/13) available here.
The Irish High Court requested the Court of Justice, to clarify the notion of ‘continuous legal residence with the Union citizen’ for the purposes of Article 16(2) of Directive 2004/38/EC and, more specifically, to clarify the words ‘with the Union citizen’.
The case concerned the application of Mr Ogieriakhi, a Nigerian national, for a permanent residence card based on his marriage to Ms Georges, a French national. The couple married in May 1999, and cohabited until August 2001 when their relationship ended. During the period from October 1999 to October 2004, Ms Georges was either working or claiming social security payments. They were divorced in January 2009.
Mr Ogieriakhi was refused his application for a permanent residence card and his subsequent case in the High Court was dismissed on the grounds that the 2006 Regulations did not apply to residency which pre-dated their coming into force in January 2007. Following an appeal to the Supreme Court, Mr Ogieriakhi was granted a right of residence by the Minister for Justice in November 2011, on the basis that he satisfied all the relevant conditions specified by the 2006 Regulations. Mr Ogieriakhi then commenced the main proceedings to the Court of Justice in which he is sought damages against Ireland for breach of EU law. In particular, he had lost his job because of the Minister’s refusal to grant the residence card.
In summary, Advocate General Bott found that a third-country national spouse of a Union citizen who has exercised a right of free movement may claim a right of permanent residence where the couple lived under the same roof for only two years and for the remaining three years they agreed to live apart with different partners.
Also, for the purposes of a permanent residence card application pursuant to Article 16(2) of Directive 2004/38/EC, a third-country national spouse of a Union citizen may rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners.
We now await to see if the Court of Justice will follow this opinion of Advocate General Bot.