An estimated 1,000 married couples remain in what is being described by the Migrant Rights Centre of Ireland as a "legal fiasco" following a High Court ruling that the Department of Justice is within its rights to insist non-EU spouses of EU citizens live in another member state before being allowed to live and work here.
The European Commission is investigating the stance of the department, it has emerged.
In an unpublished ruling, seen by The Irish Times, Mr Justice Michael Hanna said the Department of Justice was intra vires in demanding that non-EU spouses of EU citizens reside legally in another member state before being eligible for residency here.
Derek Stuart, solicitor for the couple who challenged the department, said at the weekend he would almost certainly appeal to the Supreme Court. He said about 1,000 other couples were affected. With directive 2004/38/EC, the EU ruled three years ago that non-EU family members of EU citizens should be automatically permitted to work and live in the EU.
However, since April last year, under the terms of SI 656/2006, the Department of Justice has demanded that such couples lawfully reside in another EU state first. Among those affected are Natalya Kuzmina (49) from Ukraine, who met her husband, Aivars Vejs (51) from Latvia, while she was working in Co Mayo. She is divorced and has adult children in Ukraine.
He works as a contract cleaner in Dublin and the two met in 2003 when she was visiting a friend in the city.
She had a work permit and moved to Dublin to work in a nursing home. They got married in the Ukraine in April last year.
She says her employer checked with the Department of Enterprise about whether she would need to renew her work permit once she was married and was told she would not.
She applied for residency in April last year and did not get a decision until last month. She has been frustrated by the delay and, unable to work, reliant on her husband's income. They live in a bedsit in Cabra and had hoped to buy an apartment under the affordable housing scheme.
"We had a loan approval but this is gone now," says Mr Vejs, shaking his head.
Asked what she does all day, Natalya shrugs and half smiles: "I just cry, shout at him, say 'Why did we get married'?"
On May 15th, the Department of Justice wrote to her saying that as she had not lived in another member state, her application for residency was refused.
A spokeswoman said the EU Commission office in Dublin had a large number of complaints about the department's stance.
The EU directive was "silent on whether non-EU family members of EU nationals should have resided in another member state but the spirit and purpose of EU law would appear not to support such a requirement".
She described delays in processing residency applications as clearly contrary to the provisions of Directive 2004/38/EC.
Jacqueline Healy, acting director of the Migrant Rights Centre, said the position adopted by the department clearly went against the free movement of EU nationals and their families. "At the moment I would say the whole thing is a legal fiasco."
A spokeswoman for the department said Mr Justice Hanna had vindicated the department. Extra resources were available to reduce delays in processing applications for residency, she added.
