ROMANIAN AND BULGARIAN NATIONALS – RIGHT TO RESIDE AND ACCESS TO SOCIAL BENEFITS

Romanian Bulgarian nationals who are the parents of Irish citizen children now have access to the Labour Market within Ireland on the same basis as other EU nationals. See “Employment Permit Information for Romanian Naiontals” on the Department of Jobs, Enterprise and Innovation website;

Many of the persons affected by the Minister’s change in policy are in situations where they have been refused access to social benefits, including Jobs Seekers Allowance, Child Benefit payments and Supplementary Welfare Allowance.  Having been refused these payments, they are now without any means of income whatsoever. They have been refused access to social benefits usually on the basis of the Habitual Residence Condition, or for the reason that they are not eligible to take up employment in the State. Many have doubted the legitimacy of refusals on the basis of the Habitual Residence Condition, given that the persons have often resided in the State since 2007, have children in school, and have clearly made Ireland their “centre of interest”.

Until now, these Romanian and Bulgarian nationals’ status in the State has been somewhat unclear. They were not legally resident within the ambit of Directive 2004/38, nor did the State recognize an alternative right to reside under the Treaty provisions. However, there was no legal means under EU law which permitted the State to lawfully require their removal from the State. Many such persons have fallen into destitution, surviving with the assistance of charities and voluntary organizations.

The Minster’s change in policy this week to permit Romanian and Bulgarian nationals who are the parents of Irish citizen children access the Labour Market now changes their status in the State, and also their entitlements to access social benefits. Such persons are now eligible to take up employment, and can commence a legitimate search for employment. Those Romanian and Bulgarian nationals who are already in employment, will be immediately regarded as workers within the meaning of EU law and Directive 2004/38. Their right to reside will be also immediately legitimised. They will acquire the benefits of worker status under EU law, for example, they will have access to the State welfare system, including child benefit payments.  Should they become involuntarily unemployed and register as a job seeker, they will retain their worker status (and thus their right to reside) either indefinitely if they had worked for over one year, or for at least a period of six months if they had worked for under one year.

For those Romanians and Bulgarian nationals, who are the parents of Irish citizen children, and who are not currently in employment, they can now commence a legitimate search for employment, and therefore must be regarded as economically active as Job Seekers under EU Law. Pursuant to Regulation 1612/68, all EU citizens have the right to move within the territory of the EU to seek employment for at least a six month period. As legitimate Job Seekers, they have a lawful right to reside. They can therefore apply to all benefits including Child Benefit and Jobseekers Allowance and Supplementary Welfare Allowance. If they becomes employed (either part time or full time), self employed, a student or financially self sufficient (with health insurance), they then trigger their “worker status”,  and the benefits as described above.

The question now to be determined is when did the Romanian/Bulgarian parents of Irish citizen children commence lawful status in the State? Was it on the 28^th February 2012, when the government implemented this change in policy? Or was it previous to this, when the Zambrano judgment was delivered? When the Treaty of the Functioning of the EU was implemented? The answer to these questions could have a signigicant conssequences for those who may have been wrongly refused accesss to social benefits. Most likely, these are questions to be determined by the Court of Justice.

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

EU TREATY RIGHTS UPDATE: RIGHTS OF OTHER FAMILY MEMBERS

A very recent decision of the UK Upper Tribunal (Immigration and Asylum Chamber) explores the scope of Article 3(2) of Directive 2004/38 and what constitutes an ‘other family member’ or OFM. The full text of the decision in Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) issued on 22^nd August 2011 is available here.

The case concerned a German national, of Nigerian origin, who was exercising his EU Treaty rights as a worker in the UK. An application was made for permission to reside in the UK for two of his dependants, relying on Article 3(2) of the Directive 2004/38. The German national had been providing the two applicants with financial support to Nigeria but had never lived with them in the same household. The application had been initially refused and appealed unsuccessfully, but was appealed further to the Upper Tribunal giving rise to these proceedings.

Article 3 (2) of Directive 2004/38 states:

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)                        any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)                        the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

This Article therefore extends rights of free movement to other family members not covered in Article 2(2) of the Directive who include in summary: the spouse, partner, direct descendants under 21 of the EU national or spouse/partner, or dependant direct relatives in the ascending or descending line of the EU national or spouse/partner.

A core issue determined in Moneke was whether, to qualify as an ‘other family member’ for the purposes of Article 3 (2), the ‘other family member’ must be dependent on the EEA national and have resided together in the same household with the EEA national.

On this issue, Mr Justice Blake determined as follows: “A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.”

A second core issue assessed by Mr Justice Blake was whether the term “in the country from which they are from ”, as per Article 3 (2)(a), refers to either the EEA national or the other family member. He concluded that the term “they” was intended to mean the other family member, and the country from which they have come from means either their country of origin or the country from which they are arriving.

The Upper Tribunal took a purposive reading of the Directive. It was recognised that in an age of trans-national marriages, there will be increasing numbers of EEA families where the EEA national has not lived in the country where his spouse’s relatives live and concluded:

“We cannot accept in the absence of clear legislative words that enormous numbers of “foreign” OFM dependants are excluded from the scope of the Directive by the happenstance of international geography …

An interpretation that cuts all these applicants out of consideration in limine would appear to be discriminatory on the grounds of national origin without any justification for such an approach. We are entitled to interpret EU legislation in the light of the fundamental principles of EU law and these include the principle of non discrimination reflected for example in Article 21 of the EU Charter on Fundamental Rights.”

This decision provides some welcome clarification on the complex issue of which family members of EEA nationals qualify for the rights to enter and reside in a host member state with the EEA national. It also indicates that the scope is much broader than that currently being applied in this State.

Our own experience shows that the there is a lack of consistent approach from the Department of Justice in assessing and interpreting individual cases in respect of the Regulations and the Directive, particularly regarding the scope of inclusion with the various categories of family members.   However, it must be accepted that it is a very complex area of EU Treaty Rights law, and the Moneke judgement highlights the varying interpretations by the UK courts also.

To add to the complexities, we have noted that there are a number of discrepancies between the Regulations and the Directive 2004/38. For example, the Regulations categorise family members into two groups; ‘qualifying family members’ and 'permitted family members'. These categories can be equated to those family members covered by Article 2(2) of the Directive and the ‘other family members' as covered by Article 3(2) of the Directive. While the Directive indicates that the host member state “shall" facilitate entry and residence rights in respect of both categories of family members, the Regulations distinguish between the two categories in this regard.  The Regulations direct that the State  “shall” allow a 'qualifying family member' to remain, while the State “may” allow a 'permitted family member' to remain.

Furthermore, the Directive includes partners of an EEA citizen in both Article 2 (2)(b) and  Article 3 (2)(b), while the Regulations categorize partners as a permitted family member only. Thus, pursuant to the Regulations, a partnership must exist in the country from which the non EEA national have come from.

A basic principle of EU law, called Direct Effect, means that in the event of a discrepancy between an EU Law instrument and a national instrument transposing the EU law, an individual may rely directly on the EU law instrument when the rights it creates are sufficiently clear.  Directive 2004/38 has been held to be directly effective in a previous case taken by this office - Gogolova & Ors -v- MJELR, [2008] IEHC 131 (2008). On the basis of this principle, we can rely directly on the rights enunciated in the Directive, as opposed to the Directive.

It is also note worthy that there is a preliminary reference pending with the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) specifically on this issue. We are keeping an eye out for this case and will of course keep you updated!

Brophy Solicitors

06.09.11

EU TREATY RIGHTS AND PERMANENT RESIDENCY

SUCCESSFUL APPLICATION FOR PERMANENT RESIDENCY UNDER EU TREATY RIGHTS LEGISLATION

We were delighted to receive a positive decision in a case concerning the non-EU spouse of an EU national who had separated from his wife in the State after almost 6 years of marriage. 

We submitted that our client was entitled to rely on Article 16 (the permanent residency article) of the Directive having resided with his wife in the State for 5 years.  He and his wife had not divorced and his wife remained a worker in the State.  We also sought to rely on Article 13 (retention of the right to reside) of the Directive given that our client has evidence of marriage to an EU national for 3 years with one year of continuous residency in the State.

Such applications present a series of problems.  When preparing this application, we discovered that Form EU 3 for Permanent Residency is completely inappropriate for a person in our client’s position. Both the non-EU applicant and his spouse/former spouse are requested to sign the form and the EU spouse is expected to provide 5 years worth of documentation to prove his/her residency and activities in the State.  Our client’s relationship had broken down and it was onerous and unjust to expect him to call on his wife for assistance with his application for permanent residency in the State.  We submitted that our client’s right to retain his residency in the State was on an individual basis in accordance with Article 13. 

One other glaring defect with such cases is that neither the Directive nor the Regulations provide for situations where spouses who have benefited under the Directive have separated and have not divorced.  We put forward that the deciding officer must act in accordance with our Constitution with a view to protecting spouses whose marital relationship has broken down but who have not divorced.  To decide otherwise would be contrary to the Constitution and the protection of the institution of marriage in this State. 

Our client has been a worker in the State for almost ten years.  We are pleased that the Minister sought to purposively construe the Regulations and Directive in light of our client’s circumstances.  Our client can now finally resolve his marital problems in the State and has been permitted to work and reside in the State for the next ten years.

Brophy Solicitors

11.08.11

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