Eimear Nugent

The European Court of Justice delivered a very significant judgment in the case of Chenchooliah v Minister for Justice on Tuesday 10 September 2019, following a request for a preliminary ruling from the High Court in 2018.

This judgment has brought clarity regarding the correct procedure for the spouses of EU citizens whose EU citizen spouse has left Ireland and therefore have lost their right to reside under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 to have their right of residence considered by the Minister.

In the proceedings it was confirmed by the Court that Ms Chenchooliah ceased to be a beneficiary of the Directive and Regulations following the departure of her EU citizen husband from Ireland.

The Court found that the question nevertheless remains as to whether Ms Chenchooliah’s position was governed by the Directive or only by the national law.

The Court found that Ms Chenchooliah’s circumstances are covered by the EU Directive, stating that the Directive not only contained the conditions for the granting of residence rights but it also makes provision for a set of rules to cover situations when a right of residence is lost.

The Court found that Article 15 of the Directive and the procedures provided for by Articles 30 and 31 apply to all decisions restricting free movement of Union citizens and their family members in cases where there are no public policy, public security or public health matters, as in this case.

The Court noted that this Article also provides that the State may not impose a ban on entry or expulsion in these circumstances.

The Court concluded that to find otherwise would deprive Article 15 of its substance and practical effect.

The Court concluded that in accordance with Article 15(3) of Directive 2004/38, the expulsion decision that may be made against Ms Chenchooliah cannot, under any circumstances, impose a ban on entry into the territory.

The practical effect of this decision may be very far-reaching. The Court has concluded that spouses of EU citizens who were at one time covered by the provisions of the EU Free Movement Directive cannot be issued with notices of intention to deport under national law (section 3 of the Immigration Act 1999, as amended) as the consequence of a refusal of these applications results in a deportation order, which imposes an indefinite ban on entry to the State.

Furthermore, the Minister’s decisions in these cases must be made in light of the procedural safeguards laid down in the Directive and Regulations. The ability to make an expulsion order under the Directive are restricted to cases concerning public health, security and public policy. Deportation orders are on the other hand made at the discretion of the Minister following a full consideration of the applicant’s circumstances.

It now follows that many persons have been issued notices of intention to deport unlawfully and are currently having their case considered under the incorrect procedure.

Many persons may in fact have been issued with a deportation order or even have been deported from the State unlawfully.

This case affects the spouses of EU citizens whose EU citizen spouse has left the state or has stopped exercising EU treaty rights in Ireland.

We would submit that many people who have received deportation orders or notice of intention to deport letters and were previously resident on the basis of EU treaty rights may now have grounds to request the deportation orders to be revoked. Any persons who believe they are affected by this decision should now contact our office for further advices.

• Eimear Nugent is a solicitor at immigration law specialists Berkeley Solicitors.