A Nigerian man who was refused a residency permit because his wife was no longer living with him is to sue the Minister for Justice, Mr McDowell, it emerged today.
Mr Fred Ewaen Ogeiriakhi, who has lived and worked in Ireland for seven years, is taking his case to the High Court this week. He has received a letter from the European Commission, which states that under European law, the spouse of an EU worker does not need to live permanently under the same roof to be granted a residency permit.
Mr Ogeiriakhi married his wife, an EU citizen, in 1999 after conducting a pen pal relationship with her for six years. He was granted a residency permit on the basis of his marriage to her
The couple broke up two years later but did not initiate separation or divorce proceedings. Mr Ogeiriakhi visited the Garda National Immigration Bureau in September last year to renew his residency permit.
But he was refused on the basis that he was not accompanied by his wife. He then wrote to the European Commission claiming that the refusal was contrary to European community law.
The head of its employment and social affairs unit, Mr Rob Cornelissen, replied that if Mr Ogeiriakhi's wife was a worker, he could rely on European Community law relating to the free movement of EU workers.
In a November 2004 letter, he said the European Court of Justice had ruled that a marriage between an EU worker and her spouse could not be considered to be dissolved merely because they were living separately.
"Having regard to this judgment, in the view of my services you would be entitled to a renewal of your residence permit on the basis of Directive68/360/EEC," he wrote.
The Department of Justice has requested documentation from Mr Ogeiriakhi, including a rent book in the names of himself and his wife, and proof of his wife's employment.
It said in a letter that this would be required if he wanted to reaffirm his claim for a residency permit. The Department of Justice was not available for comment today. The case is set for hearing in the High Court next Wednesday, March 2nd.