OPINION:The one-size-fits-all approach is causing pain and hardship for genuine couples, writes DENISE CHARLTON
MUCH OF the recent media coverage of allegations that migrants are taking part in “sham marriages” to circumvent Ireland’s immigration rules has told only part of a complex story.
The Immigrant Council of Ireland (ICI) is concerned that migrants in genuine, loving relationships are being stigmatised as a result.
It should go without saying that it is impossible to make assumptions about the legitimacy of a couple’s relationship based on their nationalities or immigration status. But this point now clearly needs to be made.
Getting married does not entitle anyone to live in Ireland. Nor does it entitle a person to Irish citizenship.
Under the EU freedom of movement directive, EU citizens are allowed to live in Ireland if they come here to exercise their rights under the directive – in other words, to work, study or set up a business, for example. The directive extends that right to their family members.
Non-EU citizen family members have the right to live and work in Ireland but must apply for a residence permit.
But the EU directive is equally clear that, in cases of “sham marriages”, the Government does not have to issue a residence permit. If one has already been issued, it can be revoked. Article 35 of the directive says: “Member states may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards . . .”
This leads to two important points. First, the Immigrant Council of Ireland is unaware of any instance where the Government has withdrawn a residence permit issued to someone it believes has taken part in a marriage of convenience. This is despite allegations that marriages of convenience make up a significant proportion of civil marriages in this country.
Second, policy changes the Government has previously made in its stated attempts to combat marriages of convenience have demonstrably not been proportionate or subject to appropriate procedural safeguards. In 2006, the Government introduced regulations under which it refused to issue residence permits to non-EU citizen partners of EU citizens if the couple had not lived together in another member state. The justification was to combat marriages of convenience.
The council dealt with inquiries from more than 1,800 people affected by this change in policy.While many people were receiving rejections of their applications for residence permits on the basis that they had not previously lived with their partners in another member state, not one of our clients was told they were being refused on the basis that their relationship was not legitimate. Many of the people affected by this policy had been in relationships for years, in some cases for well over a decade, but had lived together outside the EU for all of that time.
And many of the couples affected by the policy suffered enormous stress and hardship, including significant financial hardship, as a result of the policy. This policy was challenged and, in what was known as the Metock case, was found by the European Court of Justice to be unlawful.
This year, the Government introduced a policy of denying the non-EU citizen partners of EU citizens the right to work while their residence permit application was being processed. Again, the justification was to combat marriages of convenience.
The application process for people applying for residence permits on the basis of their relationship with an EU citizen routinely takes six months.
The ICI wrote to the Minister for Justice when the policy was announced in May, pointing out our belief that it was illegal.
Earlier this month, the High Court made orders reaffirming the right to work of two people who challenged the policy.
Again, the policy has caused confusion, unnecessary stress and hardship for families lawfully living in Ireland. The council has no doubt that some people will try to circumvent immigration rules by entering marriages of convenience. In our work with victims of trafficking, the question has arisen of whether marriages of convenience took place. The council is working closely with the Garda in relation to that small number of cases.
However, even if the number of “sham marriages” suggested in some media reports is correct, it is clear that the majority of non-EU citizen-EU citizen couples marrying in Ireland are not doing so for the purpose of circumventing our rules. While the Government already has the power to deal with “sham marriages”, its approach has been to introduce policies that unfairly target all of these couples. This approach has been unfair, disproportionate and not subject to procedural safeguards.
In addition, it runs the very real risk of stigmatising people in genuine, loving relationships who are lawfully living in this country.
Denise Charlton is chief executive of the Immigrant Council of Ireland