Update on EU Treaty Rights and Chenchooliah v The Minister for Justice & Equality.
In a recent blog post we spoke about the decision of the court of Justice of the European Union (“CJEU”) in Chenchooliah v The Minister for Justice and Equality and how this is impacting persons who have – or have previously had – EU Treaty Rights as family members of European Union citizens residing in the State. In our last blog post on this issue, we outlined that:
“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.”
On the 13th May 2020, the Minister for Justice, in response to parliamentary questions on the matter, stated that the Department of Justice was
“…finalising the amendment of the European Communities (Free Movement of Persons) Regulations 2015 to fully bring them in line with the ruling [in Chenchooliah]”.
Since then, the amendment regulations have been enacted. The European Communities (Free Movement of Persons) (Amendment) Regulations 2021 (the “2021 Regulations”) effectively put all beneficiaries of the 2015 Regulations into the realm of removal orders. Prior to Chenchooliah, non-nationals who no longer had a right to reside in Ireland on the basis of the 2015 Regulations – such as by divorce from their EU spouse, or the EU family member’s departure from the State – they would be served with a proposal to deport under Section 3 of the Immigration Act 1999, and face potentially being barred from the State for a lifetime.
The Chenchooliah decision, and now the 2021 Regulations, mean that such persons must have their residence in the State assessed by way of the removal procedure under the 2015 Regulations. The 2021 Regulations amended Reg. 20 of the 2015 Regulations to include a ‘family member’ of a Union citizen as being of a class of persons subject to removal. Prior to the amendment (and the Chenchooliah decision), a removal order could only be made in respect of a Union citizen, not their non-national family members.
Reg. 20 of the 2015 Regulations, as amended by the 2021 Regulations, states that the Minister for Justice may make a removal order in respect of a Union citizen or a family member of a Union citizen, where the Minister is of the opinion that 1) they no longer have – or did not have – a right to reside in the State under the 2015 Regulations, or 2) because they represent a danger to public policy or public security and represents a genuine, present, and sufficiently serious threat to the fundamental interests of Society.
Prior to making a removal order in respect of an individual, the Minister must issue to the person concerned a proposal to make such an order and outline that they have 15 days to make representations against the making of a removal order. This broadly reflects the procedure under the previously applicable Section 3 procedure under the Immigration Act 1999. The crucial difference being that if a decision is made to not allow the person to remain in the State, a removal order does not prevent the individual from returning at a future date, whereas a deportation order under Section 3 automatically bans the person from re-entering the State for a lifetime unless the deportation order is revoked under Section 3(11) of the 1999 Act.
The Minister, in considering whether to issue a removal order, must consider a number of matters expressly outlined in the 2015 Regulations, and must notify the persons concerned if a decision is taken to not issue a removal order. In the context of non-national ‘former’ beneficiaries of the 2015 Regulations, this notification would presumably include a grant of permission to remain in the State, although this is not yet clear from a practical perspective.
While the 2021 Regulations provide some clarity as to the legal procedure to be applied to persons who no longer have a right to reside in the State under the 2015 Regulations, the Immigration Service Delivery has seemingly not yet introduced internal procedures to deal with cases which come within the remit of the new legislation. From the number of Chenchooliah cases we are advising clients on, the Minister has taken the position of issuing temporary Stamp 1 permissions to persons who – in the opinion of the Minister – come within the remit of the new Regulations until, it would now seem, they are served with a proposal to remove them from the State.
Since the 2021 Regulations have been enacted, there are a number of procedural and practical questions which remains unclear. How the Minister handles non-national family members – and whether temporary permissions will remain pending until the final resolution of their cases – will hopefully become clearer in the future when internal procedures are adopted, and we are advising our clients on every step involved.
If you previously had EU Treaty Rights and have been served with a proposal to deport or a deportation order under Section 3 of the 1999 Act, 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, or, for instance, retention of residence is not available, may also benefit from the Court’s judgment in Chenchooliah and the 2021 Regulations, and we are happy to advise you in order to get the best possible outcome.
