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Family Law

The leading authority on all aspects of family law

29 JUL 2008

European Court of Justice overturns Irish ban on non-EU spouses

The European Court of Justice has ruled that, in the case of a married couple, irrespective of when and where the marriage took place and of how the spouse entered the host State, a non-European Union spouse of a citizen of the European Union can reside with that citizen in the European Union without having previously been resident in another Member State.

Irish legislation transposing the Directive on free movement of Union citizens provided that a national of a third-country who was a family member of a Union citizen may have joined that citizen in Ireland only if he was already lawfully resident in another Member State.

However the ECJ ruled on Friday in Metock and Others v The Minister for Justice, Equality and Law Reform that the Irish laws are incompatible with the Directive on the free movement of EU citizens.

The case involved four couples where the husbands were third-country nationals who arrived in Ireland and applied for asylum. In each case the application was refused. While resident in Ireland those four persons married citizens of the Union who did not have Irish nationality but were resident in Ireland. None of the marriages was a marriage of convenience.

After the marriage, each of the non-Community spouses applied for a residence card as the spouse of a Union citizen. The applications were refused by the Minister for Justice on the ground that the spouse did not satisfy the condition of prior lawful residence in another Member State.

Actions were brought against those decisions in the High Court of Ireland, which asked the Court of Justice whether such a condition of prior lawful residence in another Member State was compatible with the Directive.

The European Commission welcomed the ruling saying it clarified the rights of free movement of European Union citizens and their family members throughout the EU.

The Court reminded Member States that they may still refuse entry and residence to any citizen on the grounds of public policy, public security or public health, provided the refusal is based on an individual examination of the particular case. Member States may also refuse, terminate or withdraw the right of entry and residence in the case of abuse of rights or fraud, such as marriages of convenience.

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