EU Treaty Rights and the decision of Chenchooliah v The Minister for Justice and Equality
The Court of Justice of the European Union (“CJEU”) delivered judgment on 10th September 2019 in a set of proceedings taken against the Minister for Justice and Equality, holding that the process for deporting persons who previously held EU Treaty Rights, or otherwise had a right of residence under Directive 2004/38/EC, was unlawful.
The Chenchooliah case concerned a national of Mauritius who was married to an EU national, but who was refused a residence card under the European Communities (Free Movement of Persons) Regulations 2015 because her EU spouse had left the country before she could be issued with a residence card.
The Minister for Justice later sought to remove Ms. Chenchooliah from the State by way of a deportation order issued under Section 3 the Immigration Act 1999. Ms. Chenchooliah argued that she could only be removed on the basis of a Removal Order under the 2015 Regulations, not Section 3 of the Immigration Act 1999. The CJEU held in her favour, stating that persons who come within the remit of Directive 2004 (which the 2015 Regulations transposed into Irish law) can only be removed by the provisions set down in that Directive and the Regulations adopted to give it effect.
The result of the CJEU decision means that persons who held EU Treaty Rights previously and have been issued with a proposal to deport or a deportation order under Section 3 of the Immigration Act 1999 could now have their cases assessed under the Removal Order provisions of the applicable Regulations instead. It would also appear that a deportation order previously issued in these circumstances is presumptively invalid.
However, since the CJEU decision, the Minister for Justice stated that an amendment to the 2015 Regulations is required in order to comply with the Court’s decision. On the 13th May 2020, in response to a Parliamentary Question, the Minister stated:
“The Department is currently finalising the amendment of the European Communities (Free Movement of Persons) Regulations 2015 to fully bring them in line with the ruling of the European Court of Justice (ECJ) in the Chenchooliah case. The Immigration Service of my Department is also finalising a removal procedure for the persons who come, or have once come, within the provisions of the Free Movement Directive”
As of the date of this post, the amendment has not yet been enacted. This means that many people who are impacted by the decision are waiting until the amending Regulations are enacted. However, we have successfully been able to regularise or temporarily regularise the situation of persons impacted by the Court’s judgment.
If you previously had EU Treaty Rights and have been served with a proposal to deport, or a deportation order, get in contact and we can assist you. Persons who are at risk of having their EU Treaty Rights revoked in cases where their spouse’s left the State, for instance, or retention of residence is not available, may also benefit from the Court’s judgment in Chenchooliah, and we are happy to advise you in order to get the best possible outcome.