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

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

EU Treaty Rights Update: What happens in cases of separation or divorce?

RIGHTS TO PERMANENT RESIDENCY FOR NON EEA FAMILY MEMBERS

We have been receiving many queries relating to the rights of spouses and partners of EU citizens to permanent residency pursuant to the Free Movement Legislation. The queries  have often involved circumstances where the Union citizen is no longer in employment, or where the couple have seperated or are divorced.

Directive 2004/38 and Irish Regulations of 2006 which implement the Directive into Irish law provide rights of permanent residence in the host Member State for family members of Union citizens.

Union citizens acquire the right of permanent residence in the host Member State after a five-year period of residence in accordance with Directive/Regulations, provided that no grounds for expulsion exist against them. The same rule applies to family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years' absence from the host Member State.

Thus, Union citizens and their family members who have resided in the State for a five year period, but not in conformity with the Directive/Regulations, will not be entitled to premanent residence.

The Regulations specifically deal with the situation of a Union citizen and their family members’ eligibility for permanent residence in circumstances where the Union citizen is no longer working in the State. Regulation 13 directs that Union citizens who have been in employment in a host Member State, may apply for a permanent residence certificate when their employment ceases (whether or not they have acquired five years of residency) if they are of pensionable age/retiring, if they have acquired more than 3 years residence and have pursued the activity at least within the last 12 months, or are ceasing employment because of incapacity to work.

Regarding family members, the Regulations state that the family member of a Union citizen who is entitled to permanent residency as explained above, may also remain permanently in the State on the basis they have been residing with the Union citizen.

Regulation 10 and 14 deal with the right of residence/permanent residence for family members in the event of divorce. The Regulation states that a family member of a Union Citizen may retain a right of residence in the State on an individual and personal basis in the event of the Union Citizen’s divorce, in the following circumstnaces;

(i)      Prior to initiation of divorce, the marriage lasted at least 3 years, including one in the State

(ii)     The non EEA spouse has custody of the Union citizen’s children by court order

(iii)    Particularly difficult circumstances exist such as domestic violence

(iv)    A court order for access to a minor child in the State exists

However, the family member must also satisfy the Minister that he is in employment/self employed/self sufficient.

A family member who meets these criteria is entitled to reside independently in the State after the divorce. Regulation 14 directs that such a family member shall then acquire a right to permanent residence after lawfully residing in the State for a period of five years.

A family member who has resided with the Union citizen for five years and wishes to submit an application for permanent residence must use the Form EU 3. This form is specific to those family members who are in a continuing relationship with the Union citizen.  Both the Union citizen and family member are required to sign the form and provide details of their employment status. A document certifying their right to permanent residence will be issued on a successful application. The Member States issue to third country family members permanent residence permits which are valid indefinitely and renewable automatically every ten years, and these must be issued no later than six months after the application is made. Citizens can use any form of evidence generally accepted in the host Member State to prove that they have been continuously resident.

Where the family member is no longer residing with the Union citizen, there is no specific procedure to follow for applying for permanent residence. However, as explained above, a family member may still retain the right to permanent residence, for example where divorce proceedings have been initiated as directed by Regulation 14. A request for permanent residence can be submitted to the Minsiter in writing, with sufficient documentary evidence of residence in the State.

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 Regulation 14. 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. Recital 15 of the Directive 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.”

We submit that this principle should be purposively construed such that a third country national spouse of a Union citizen retains his or her right of residence where there has been a marital separation, but not a divorce. If it is not construed in this way, it becomes necessary for the couple to divorce in order for the third country national spouse to retain a right of residence. This is, in effect, an encouragement to divorce, and is contrary to our Constitution.

We hope that this clarifies some of the more complex aspects of EU Treaty Rights applications. We welcome any questions you may have. 

Karen Berkeley, Brophy Solicitors

28.06.11