A Nigerian man has lost his appeal over being refused permanent residence here after his EU citizen wife, whom he married here in 2005, returned to her native Poland in 2009.
The man, who came here unlawfully in 2003 and claims his marriage has broken down and he is the father of a child born here in 2012 arising different relationship, is facing possible deportation following the Court of Appeal's decision.
The case centred on Article 16 of a 2004 European Directive, the Citizens Directive, concerning the right of EU citizens and their family members to move and reside freely within EU territory.
In its judgment today , the three-judge COA upheld findings by the High Court that, because the woman left the State in July 2009, she fell over a month short of residing here legally for a continuous period of five years, as required for permanent residency under Article 16.
Giving the judgment, Mr Justice Brian McGovern said the right of third country family members to reside in the host State is a right derived from the EU citizen.
Article 16 provides that EU citizens who have resided legally in a member State for a continuous period of five years shall have the right of permanent residence. Family members of the EU citizen who are not nationals of the member State must show they have legally resided with the Union citizen in the host member state for a continuous period of five years.
He rejected the man's arguments that the first six months after his wife's absence from the State should, for the purposes of the Directive, be treated as a "temporary" absence.
Social welfare records showed the woman took up employment here on August 21st 2004 and her last employment here was April 26th 2009 after which she went on unemployment benefit until July 1st 2009, he noted.
There was no evidence she had returned to Ireland and the evidence clearly established her absence was not "temporary".
The man also appeared to have fallen almost eight months short of residing legally here with his EU citizen spouse for five continuous years between when they married in March 2005 and she left the State in July 2009, he held.
Because the relevant time periods were not met, the fact of the couple's separation was not relevant, he said.
Earlier, outlining the background, the judge said the man entered the State unlawfully in early 2003 and was refused asylum in 2004. In 2005, he married the Polish woman, then working and living in the State and, in January 2006, based on marriage to an EU citizen, got permission to reside in the State for five years.
His wife left the State in July 2009. His solicitors wrote to the Department of Justice in January 2011 seeking renewal of his permission to remain and stating, inter alia, they were instructed the woman had returned temporarily to her home country due to the current economic situation.
In February 2011, the man was informed the Department had learned the EU citizen spouse had left the State and it was proposed to revoke his permission to remain. In October 2011, he was informed there was no basis for further permission for him to remain and a proposal to deport him was enclosed.
He made further representations but, in May 2014, the Department reiterated the refusal decision.
In the interim, the man had secured leave to remain on a Stamp 4 basis, a conditional limited residency, for three years until June 2017.
He also claimed to be the father of a child born here in 2012 as a result of a different relationship.
In October 2015, he applied for permanent residence under Article 16 but was refused. In October 2017, the High Court upheld that refusal.