The European Court of Justice delivered a very significant judgement in the case of Chenchooliah v Minister for Justice on the 10th September 2019, following a request for a preliminary ruling from the High Court in 2018.
This judgement has brought clarity regarding the correct procedure for the spouses of EU citizens, whose EU citizen spouse has left Ireland and therefore have lost their right to reside under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 to have their right of residence considered by the Minister.
In the proceedings it was confirmed by the Court that Ms Chenchooliah ceased to be a beneficiary of the Directive and Regulations following the departure of her EU Citizen husband from Ireland.
The Court found that the question nevertheless remains as to whether Ms Chenchooliah’s position was governed by the Directive or only by the national law.
The Court found that Ms Chenchooliah ‘s circumstances are covered by the EU Directive, stating that the Directive not only contained the conditions for the granting of residence rights but it also makes provision for a set of rules to cover situations when a right of residence is lost.
The Court found that Article 15 of the Directive and the procedures provided for by Articles 30 and 31 apply to all decisions restricting free movement of Union citizens and their family members in cases where there are no public policy, public security or public health matters, as in this case.
The Court noted that this Article also provides that the State may not impose a ban on entry or expulsion in these circumstances.
The Court concluded that to find otherwise would deprive Article 15 of its substance and practical effect.
The Court concluded that in accordance with Article 15(3) of Directive 2004/38, the expulsion decision that may be made against Ms Chenchooliah cannot under any circumstances, impose a ban on entry into the territory.
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