Thursday, August 21, 2014


We work on many EU Treaty Rights cases. An area currently causing much confusion is the EU Treaty Rights application for retention of the right to reside for non EEA family members.

In certain circumstances, a non EEA family member of an EU citizen may be entitled to an independent right to retain their residence in the State following the divorce or departure of the EU Citizen from the State.

Article 12 of Directive 2004/38/EC deals with the situation of death or departure of the EU citizen. The Directive is silent in respect of family members who are non EEA nationals, and therefore leave the matter to be determined at the discretion of the host Member State. In Ireland, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended) has not implemented specific protections in these circumstances. It can therefore be understood that the non EEA family member loses their right of residence in the case of death or departure of the EU citizen.

However, there is an exception to this general rule. Article 13 (1) of the Directive provides for the right of retained right of residence for family members who are nationals of a Member State in the event of divorce. Article 13 (2) applies to family members who are not nationals of a Member State.

The primary qualifying condition is that set out in Article 13(2)(a):

“prior to the initiation of the divorce…the marriage…has lasted three years, including one year in the host Member State”.
The second sub paragraph of Article 13 of the Directive provides:

“Before acquiring the right of permanent residence, the right of residence of the person concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or…...or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements……Such family members shall retain their right of residence exclusively on personal basis.”

These provisions have been interpreted by the Department of Justice to mean the EU citizen must be in Ireland exercising EU Treaty Rights at the date of the divorce in order for Article 13 to apply. It is argued that otherwise, how can the non EEA family member retain a right of residence that they lost when the EU citizen previously left the State?

This is an important question in the case of a family member seeking to acquire a retained right of residence. Must he or she show that the EU national remained a worker etc. at the time that the right of residence is claimed to accrue (here the time of the divorce)?

In the UK, Regulation 10(5)(b) requires the applicant to show he or she was residing in the UK in accordance with these Regulations at the date of termination. In other words, that at the date of the termination of the marriage he/she was residing in the UK as the spouse of an EU national who was working at that date. This identifies the focus as being on the spouse’s status as a worker at the date of the divorce.

However, a distinguishing factor between Ireland and the UK is the fact the Ireland operates extremely restrictive divorce laws. A person cannot become divorced in Ireland until they have lived separately for a four year period. In such circumstances, many EU nationals will return to their home country to effect the divorce. Does this mean they have departed for the purposes of EU Treaty Rights law? And thus rendered the protections of Article 13 void for their ex non EEA spouse?

The question has become the subject of many judicial review proceedings before the Irish High Court in recent years. The High Court has made a reference to the European Court of Justice and we await the Court of Justice’s clarification on the point.

Brophy Solicitors

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