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C-94/18 - Chenchooliah—CJEU clarifies the rights of residence of third country nationals

Noeleen Healy BL

On 10 September 2019, the CJEU delivered a significant ruling affecting spouses of EU citizens, who had previously exercised their treaty rights in Ireland. The matter arose from a preliminary reference from the Irish High Court in the case of Chenchooliah v Minister for Justice [2019] IEHC 735.


Issue


The main issue was whether the removal of a third country national who was previously a beneficiary of derivative rights by virtue of an EU-citizen spouse exercising their free-movement treaty rights in this jurisdiction under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015, but whose spouse had since left the jurisdiction, could now be removed from Ireland under purely national immigration procedures, under section 3 of the Immigration Act 1999 (as amended), or whether such persons should be dealt with by way of removal order under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015), and what safeguards were applicable to any such removal.


Preliminary reference


The High Court made a preliminary reference to the CJEU on 16 January 2018 in relation to the matter. The Grand Chamber determined that Ms Chenchooliah had ceased to be a beneficiary under the Directive once her husband had departed from Ireland. However, Ms Chenchooliah still came within the scope of the Directive, because it contained conditions for both the grant of the right of residence as well as rules around when a right of residence is lost.


The CJEU stated 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, unless there is a justification for limitation, provided for by the Directive. A member state may not impose a ban on entry under any circumstances, which would be the effect of any deportation order relying solely on Irish national law. The Court concluded that to find otherwise would deprive article 15 of its substance and practical effect.


Effect


Upon being listed by the High Court in October 2019, the substantive matter was struck out on consent, the CJEU’s judgment having effectively dealt with the substance. The applicant was successful in obtaining her costs.


Spouses of EU citizens whose EU-citizen spouse has stopped exercising EU treaty rights in Ireland, and to whom a deportation order under section 3 of the Immigration Act 1999 (as amended) was issued, would now have grounds to seek the revocation of that deportation order.

Counsel for the Applicant: Conor Power SC and Ian Whelan BL

Counsel for the State Respondent: Noel Travers SC and Sarah-Jane Hillery BL

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