Court overturns ban on non-EU spouses

THE EU Court of Justice has ruled non-EU spouses may legally live in Ireland.

The ruling will affect a number of cases before the High Court and will permit people, already deported, to return.

The Government had argued legislation was needed to thwart “marriages of convenience” where a couple marry to gain residency rights.

The Department of Justice, meanwhile, had decided a non-EU spouse of an EU citizen living in Ireland must live in another EU country before settling here.

At least one person has been deported and a number left voluntarily. Several more have challenged the law in the High Court since it was introduced in 2006.

The department says it is studying the judgement while the Immigrant Council of Ireland has welcomed it. Hundreds of spouses who were granted temporary permits were awaiting the outcome of the ruling.

The court found that not allowing an EU citizen to live with their spouse and children, interfered with a basic right to free movement throughout the EU.

Hilkka Breher, a solicitor with the NGO Immigrant Council of Ireland, said: “The EU Treaties are there to protect families — the rights of families cannot be superseded by the rights of the State.”

When Ireland adopted the EU legislation, it inserted an additional requirement that any non-EU spouse of an EU citizen coming to Ireland must have lived in another member state first.

The High Court referred the issue to the EU Court of Justice when it was considering four cases challenging deportation orders.

In each case, a third country national had applied for and was refused asylum in Ireland but had married EU citizens in Ireland who were not Irish. None were marriages of convenience.

After the marriage, each applied for a residence card but was refused on the basis that they did not live in another EU member state before coming to Ireland.

The court said if EU citizens were not allowed to lead a normal family life in the host member state, they could not enjoy their rights under the EU treaty.

The ruling will not affect Irish citizens married to non-EU citizens to whom the state can refuse an entry visa, unless the Irish person has lived in another EU country, thus bringing into force his right to freedom of travel throughout the EU.