The rights of family members of EU citizens is a topic that we have visited frequently in recent months, with issues surrounding this area of law becoming something of a theme in news reports around the continent. The case we will be focusing on today again brings up some new issues, and highlights that the nature of the rules and guidelines here can often be muddled and can leave people in unfortunate situations.
The case in question – Ms Chenchooliah:
Ms Chenchooliah is originally from Mauritius but had lived in Ireland since 2005. In 2011 she married a Portuguese national and applied for a residence card as a family member of an EU citizen. However, her application was refused on the grounds that there was not enough evidence to prove her husband was employed.
In 2014, Ms Chenchooliah contacted the immigration authorities and informed them that her husband was now in prison in Portugal, asking permission to remain in the UK regardless. The immigration authorities told her that she was not allowed to stay, and she received a deportation order which required her to leave Ireland and not return.
What could Ms Chenchooliah do?
Speaking in purely legal terms, Ms Chenchooliah never actually had a right to reside in the UK under EU law, and this was cemented when her husband left to go back to Portugal, leaving Ireland.
However, she had clearly done her research and explained to the immigration authorities that she did at least briefly have a right of residence because of the three-month rule under Article 6 of Directive 2004/38.
Right of residence for up to three months
- Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
- The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.
As you can see, the article states that an EU citizen and his or her family members have an initial right of residence for three months no matter if they qualify as a worker or not.
In retaliation, and with this information in mind, Ms Chenchooliah argued that she could only be expelled from Ireland in compliance with Articles 27 and 28 of Directive 2004/38. These articles say that any expulsion decision must be in compliance with the EU law principle of proportionality and that “the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin”.
Fortunately for Ms Chenchooliah, the Court of Justice agreed with her and she was allowed to remain in Ireland. This was decided on the basis that a person who had previously been a qualifying family member under Directive 2004/38 but had later lost that status could only be expelled in compliance with Articles 27 and 28, which state that:
“The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.”
This case is fairly unique, and demonstrates the unpredictable nature of EU law in its current state.
Please do not hesitate to get in contact with us if you have any questions relating to this topic, or any other legal enquiries. You can call us on 020 7928 0276 or email into email@example.com