Retention of Residence Applications following Divorce, Death or Departure of EU citizen
The Directive and the Regulations provide for the retention of residence by the non-EEA/Swiss family member on a personal basis in the event of divorce, annulment of marriage or termination of a registered civil partnership or in the event of death and in other certain circumstances. Applications for retention of residence cards are submitted on a Form EUTR5 to the EU Treaty Rights Division of the Department of Justice.
Sinnott Solicitors Dublin and Cork receive numerous queries from clients regarding their immigration status when certain unavoidable situations arise affecting their EU Treaty Rights residence permission. This is often the case when a person obtained a residence card to remain in the State on the basis of their marriage to an EEA/Swiss National and that relationship has subsequently broken down. When that happens, persons wish to retain their residency on an individual basis as opposed to residency based upon their marriage to an EEA/Swiss National. Separation can be very difficult, but it can be extremely stressful when combined with the threat of revocation of residency. Other circumstances which would lead to an application for retention of residency would be in the event of the death of the EU citizen or in the event of the EU citizens departure from the State.
The Legal basis for Retention Permission
Directive 2004/38EC which is given effect in Ireland by the European Communities (Free Movement of Persons) Regulations 2015 (the “Regulations) allows for retention of residence in certain circumstances. If you have previously been granted a residence card but your circumstances have changed such that:-
- The EU Citizen has died or
- The EU Citizen has departed from the State leaving the non-EEA National the custodian of minor children who have enrolled in an educational establishment in the State for the purpose of a course of study
- Your marriage of civil partnership to the EU Citizen has been dissolved through divorce, annulment or Civil Partnership then you may be entitled to make an application for retention of a residence card.
Death of an EU Citizen – The law on retention of Immigration Permission
In the case of a death of an EU Citizen, the interpretation is clearly more straight forward. Regulation 9 states that certain criteria must be met in order to avail of the retention permission. It requires that the following criteria are met:
- an Applicant must have resided in the State with the EU Citizen for at least one year prior to the death of the EU Citizen.
- an Applicant must be employed or self-employed in the State or possess sufficient resources to support themselves and any dependents
if the EU Citizen’s children are enrolled in education in the State for the purposes of following a course of study, then the child and the parent who has custody of the child will be entitled to reside in the State until the completion of the course of study.
Departure of an EU Citizen – The law on retention of Immigration Permission
In the case of the departure of an EU Citizen from the State, such an application can only be made where there are minor children of the EU Citizen of whom the Applicant has legal custody of in the State. The basis of that legal custody of minor children must be set out and can be by agreement with the EU Citizen or by Court Order. When the EU Citizen has departed from the State and his or her children are resident in the State and where those children are enrolled in an educational establishment for the purpose of following a course of study, then the children and the parent who has custody of the child will be entitled to reside in the State until completion of the course of study.
EU Treaty Rights – Retention of Residence if Divorced or Separated
Divorce obtained while the EEA/Swiss Citizen is exercising free movement rights in the host State does not affect the right of the non-EU Spouse to reside in the host State provided that the marriage has lasted for at least three years with a least one of those years in the host State prior to the divorce proceedings commencing and provided that the non-EU Spouse is not a burden on the State.
Sinnott Solicitors Dublin and Cork have led the way in clarifying the law in this area. In the case of our client Khalid Lahayani known as Khalid Lahayani .v. Minister for Justice and Equality 2013 IEHC176, the Irish High Court held that the Directive must be interpreted expansively to provide for the occasions where marriages and civil partnerships do not work out and where the EU Union worker simply deserts and quits the host State before divorce proceedings are contemplated.
The case is clearly intended to protect non-EU Spouse from having their residence revoked and being expelled from the State because their legal status in the State has been altered by the breakdown of their marriages and a subsequent application for Divorce.
The court concluded in that case that Directive must be interpreted to allow the non-EU spouse a reasonable time to commence and prosecute divorce proceedings before rights of residence are revoked.
However in a subsequent case Kuldip Singh .v. Minister for Justice and Equality C-218/14 which dealt with the rights of third country nationals and family protection in the context of divorce and retention of EU Treaty Rights, the Court of Justice of the European Union considered whether the non-EU Spouse retained his right of residence where divorce followed after the EU National had left Ireland.
The Court held that Article 13(2) of the Directive meant that divorced third country national’s such as Mr. Singh do not retain a right of residence because the EU Spouse had left the host member state before the commencement of divorce proceedings. The onus is on the third country national to expeditiously begin divorce proceedings in order to retain their rights of residence which in many ways does not allow a couple a chance for reconciliation.
The Court considered whether a non-EU Citizen retains a right of residence in the host member State during the period before divorce following the departure of an EU Citizen from the host member State.
The Court held that the non-EU Citizen retains their right of residence if, prior to the commencement of the divorce proceedings, the marriage lasted for three years including one year in the host member State. However, the Court held that the EU Citizen’s departure would have led to the right of residence of the non-EU Spouse lapsing and the subsequent divorce proceedings could not lead to its revival because the Directive refers to “retention” of an existing right of residence but not to the revival of an already lapsed right of residence. Therefore, the Applicant could only be successful where both spouses had resided in the host member State until the time of the divorce.
In that case, divorce proceedings had been initiated outside of the State after the departure of the EU National and the Court held that the Applicant had lost the right to reside in the host member State.
Incidentally, the Court also concluded that the resources of the non-EU Spouse must be taken into account when determining whether the EU Spouse had sufficient resources. It was not relevant where the resources came from provided the resources were lawfully acquired.
Where a divorce is bought about as a result of domestic violence the European Court of Justice recently confirmed in the case of X v Belgium (case C-930/19) that when a divorce is bought about due to domestic violence, Article 13 of the Directive may be relied upon, if divorce proceedings were initiated after the EEA/Swiss Citizen left the host Member State, as long as the divorce was initiated within a reasonable time period of the EEA/Swiss Citizens departure.
How to retain your EU Treaty Rights Residence in Ireland after the breakdown of a marriage
There is a lot of confusion in this area. It is now quite clear from the interpretation that has been given to Directive 2004/38EC by the Courts that an Applicant may only apply for retention where there arises Divorce or annulment of marriage to the EU Citizen or annulment or dissolution of civil partnership with EU Citizen.
If a non-EEA national separates from the EEA/Swiss citizen spouse and the spouse continues to reside and exercise their EU Treaty Rights in the State, then the EEA national’s residence rights remain unchanged. They must however notify the Department of Justice of the change in circumstances.
Duration of the Marriage
It is a general requirement in respect of an application for retention of immigration status that the parties have been married for at least three years beforehand with at least one year spent residing in Ireland.
Regulation 10 sets out certain criteria in order to meet a right of residence after divorce or annulment of a marriage or dissolution of a civil partnership. Apart from the fact that a person is required prior to initiation of the proceedings to have lived for one year in the State and to have had a valid and subsisting marriage for three years all the while the EEEA/Swiss Citizen exercising their EU Treaty Rights in the State at the time that the Decree of Divorce or disillusionment was made, the retention of such rights of residence may also be warranted by particularly difficult circumstances such as the Applicant having been a victim of domestic violence while the marriage or civil partnership was subsisting.
Preparing an application for retention of EU Treaty Rights
It is absolutely essential that an application is presented to the EU Treaty Rights Division of the Department of Justice in a very comprehensive and clear manner. As Immigration Lawyers, Sinnott Solicitors Dublin and Cork have years of experience in dealing with retention applications. Every application should outline in detail the following matters:
- The Applicant’s immigration history
- The Applicant’s employment history and prospects in the State
- The Applicant’s full relationship history with the EEA National
- The character and conduct of the Applicant
- A very full and comprehensive set of documents to support the above an analysis and outline of the law in the area
- Legal submissions in support of the application
- Completed form EUTR5
Activities of the Applicant to become eligible to apply for retention
If an Applicant wishes to retain a residence card following the death of the EU Citizen or the divorce, annulment or dissolution of a marriage or civil partnership with an EU Citizen and subsequently wishes to obtain a permanent residence card, the Applicant must be involved in one of the following categories:-
- Residing with sufficient resources which means that the Applicant has sufficient resources to maintain themselves and any dependents in the State and also holds comprehensive health insurance for the Applicant and any dependents. That is to ensure that the Applicant or the Applicant’s dependents do not become an unreasonable burden on the social assistance scheme of the State.
Successful Application for Retention
In the event that an Applicant is successful in the retention application, then they will be permitted to retain the residence card and/ or apply for a permanent residence card depending on the circumstances.
When making an application for retention of EU Treaty Rights, we ask the Department of Justice to grant a temporary permission to reside in the State to the applicant whilst their application is pending if their residence card has already expired. The temporary permission is granted for a six-month duration which may be extended until the outcome of the application.
At present the Department of Justice state that the application could take up to six months. However, that in our experience is not the case. We are aware of many retention applications where those applications have taken a number of years to process.
Delay in processing Retention Applications
Clearly a delay as outlined above constitutes an unreasonable and lengthy delay in processing retention applications. In the event that the delay in processing an application is unreasonable and disproportionate to any object to be achieved in terms of public policy or security, it may lead to the requirement for a judicial review application before the High Court in order to compel the EU Treaty Rights Division to process the application.
Changes in circumstances
Sometimes the Applicant’s circumstances change after the retention application is made. The onus is on each Applicant to keep the Department of Justice updated regarding their circumstances and to submit any relevant supporting documents in relation to new circumstances.
If you are a non-EU citizen married to or in a civil partnership with an EEA/Swiss citizen and if you are concerned about your immigration status because the marriage has broken down or you have separated, Sinnott Solicitors Dublin and Cork would be happy to assist you in relation to your immigration case. Please do not hesitate to contact us at 014062862 or firstname.lastname@example.org.
Revocation of a Residence Card
The Minister for Justice is entitled to revoke a residence card when
the holder is no longer entitled to it, for example where the EEA/Swiss citizen has left the State, a relationship has broken down, the EEA/Swiss citizen is no longer working and does not retain worker status or where there are allegations of fraud or abuse against the applicant, such as a marriage of convenience finding.
When the Minister for Justice proposes to revoke a residence card, they must first write proposing to revoke the residence card and invite the applicant to submit representations within 15 working days of the letter of notice.