EUROPE’S HIGHEST court will hear a landmark case today that will decide whether spouses of European Union citizens who are not themselves citizens of the EU can continue to live in Ireland.
The case involves four couples who are appealing a decision by the Government to deport them because the husband in each case is not an EU citizen and has never lived lawfully in another EU state.
None of the spouses issued with “notice of intent to deport” orders are married to Irish citizens but are married to citizens of other EU states. In each case the couples were married in the Republic and the non-EU national husbands had all unsuccessfully applied for asylum, according to pre-hearing documents.
The four couples lodged an appeal with the High Court against the “notice of intent to deport” orders, arguing they breach EU law, and particularly their right to live and work in any EU state.
The High Court recently referred several legal questions on this issue to the European Court of Justice (ECJ), which will issue a recommendation to the High Court in the months following the hearing.
It is widely anticipated that the ECJ case will set a precedent for thousands of other couples residing in Ireland and, more widely, better define the rights of EU states to manage their own immigration policies.
Several EU states, including Britain, Germany, Italy and the Netherlands, have intervened in the case in support of the Government.
The Department of Justice argues that a previous ECJ judgement in 2003 in the case of Hacene Akrich provides the legal basis to deport non-EU spouses of EU citizens.
A spokeswoman for the Department of Justice said the Akrich case stated that to avail of the freedom of movement of EU workers and family members a “non-EU citizen must be lawfully resident in a member state when he moves to another member state to which the citizen of the Union is migrating or has migrated”.
But the European Commission and immigrant rights groups have lined up in support of the four applicants, arguing that deporting the spouses of EU citizens is discriminatory and contrary to one of the four basic European freedoms: the freedom to live and work in all EU member states.
“Our view is that freedom of movement for EU citizens within the union is a fundamental right and should not be curtailed simply due to the nationality of a spouse,” said Hilkka Becker, senior solicitor with the Immigrant Council of Ireland.
The four applicants are expected to argue that the European Free Movement Directive passed in 2004 provides the necessary legal right for non-EU spouses of EU citizens to move freely within the Union.
This will be contested by the Government, which argues that this directive deals only with movement within the Union and not entry to it.
Last year, the Government issued thousands of non-EU spouses with “notices of intent to deport” orders after a separate High Court ruling that found it was within its rights to insist that non-EU spouses of EU citizens must live in another EU state before residing here.
The Government said it was correctly implementing an immigration law it passed in April 2007, which lays down that non-EU relatives of an EU citizen must reside lawfully in another EU state before being permitted to work and live here.
This was introduced to prevent “marriages of convenience”, whereby non-EU citizens may persuade EU citizens to marry them just to gain entry to the Union.
Brian Burns, a solicitor with the Dublin-based law firm Burns, Kelly, Corrigan, that is representing one of the applicants, said the case would set a precedent for the whole of Europe. “My client is suffering severe hardship because he is unable to work in Ireland and his wife is pregnant and cannot work at the moment,” he added.