EU TREATY RIGHTS AND RETENTION OF THE RIGHT TO RESIDE FOR NON EEA FAMILY MEMBERS

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

Referral to Court of Justice concerning the Right of Residence for the Non EEA parent of EU citizen child in Education in a Member State

Case  Study : Ms Olaitan Ajoke Alarape (the First Appellant) and Olukayode Azeez Tijani (the Second Appellant) –vs— The Secretary of State for the Home Department (respondent) and Aire Centre (third-party intervener)

We are waiting with interest to see the Court of Justice’s response from the UK referral in the above case.  The outcome could be of great assistance in clarifying and expanding upon the rights of residence established in the seminal cases of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08.

In particular, the right of residence possessed through being a primary carer of the child in education of a former worker does not arise under Article 7 of the Directive but under other EU legislation. It is currently uncertain whether such a right of residence does or does not count towards the five years required for permanent residence. This question should be finally settled by the forthcoming judgment of the ECJ in Alarape and Tijani Case C-529/11.”

The facts of the Alarape case are as follows;

The Appellants were mother and son, and Nigerian nationals. They arrived in the UK illegally in 2001. In 2003, the first appellant married Mr. Salama, a French national, so the first and second appellants were given permission to reside until 2009. The couple then divorced in 2010.  Subsequently, the appellants applied for permission to reside based on the fact that Mr. Salama was exercising his EU Treaty Rights by working for 5 years. 

The second appellant is a student who intends to commence a course in PhD studies in Edinburgh.

The First Tier Tribunal (FTT) found that Mr Salama was not exercising his EU Treaty Rights because he had only produce evidence of employment from 2004-2006. The appellants therefore received a negative decision but they received permission to appeal

The findings made by the Upper Tribunal were as follows;

-          Mr. Salama hadn’t been exercising EU Treaty Rights, so there’s no error in law there. They don’t qualify for any of the protections of non-EU family members in the event of a divorce because he hadn’t been working.

-          Even though the son is over 21 and isn’t the child, but the step-child of Mr. Salama, his rights are recognized under Article 12 to have his education.

-          The FTT is unable to determine whether or not the first appellant is his “primary carer,” because there is no clear definition of primary carer. They enjoy a close relationship and he is financially dependent on his mother, but he lives in another city, is now 25, is healthy and able-bodied, and has entered into the labour market on his own before.

Queries of law referred to the Court of Justice:

-          For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?

-          In order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

-          In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

-          In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

-          Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence”) and being issued with a residence card under Article 19 of the same Directive?

Brophy Solicitors

06.09.12