• Aaron Flynn

CJEU rules removal of spouse of EU national from Ireland under Deportation Order process is unlawful

In Case C‑94/18, Nalini Chenchooliah v Minister for Justice and Equality the Court of Justice of the European Union ('CJEU') considered the the following questions:

(1)      Where the spouse of an EU citizen who has exercised free movement rights under Article 6 of Directive [2004/38] has been refused a right of residence under Article 7 on the basis that the EU citizen in question was not, or was no longer, exercising EU Treaty rights in the host Member State concerned, and where it is proposed that the spouse should be expelled from that Member State, must that expulsion be pursuant to and in compliance with the provisions of the Directive, or does it fall within the competence of the national law of the Member State?

(2)      If the answer to the above question is that the expulsion must be made pursuant to the provisions of the directive, must the expulsion be made pursuant to and in compliance with the requirements of Chapter VI of the Directive, and particularly Articles 27 and 28 thereof, or may the Member State, in such circumstances, rely on other provisions of the Directive, in particular Articles 14 and 15 thereof?’

Ms. Chenchooliah, a Mauritian national, arrived in Ireland in February 2005, and held a student visa, and resided there until 7 February 2012 on the basis of successive permissions to remain. She later married [in 2011], a Portuguese national living in Ireland. She applied for a residence card and subsequently the Minister on a number of occasions sought additional information. Eventually in 2014, sent directly to the Minister, Ms Chenchooliah stated that, following a criminal conviction, her spouse had been in prison in Portugal since 16 June 2014, and sought permission to remain in Ireland on the basis of her personal circumstances.

In November 2016, the Minister informed Ms Chenchooliah that he had decided not to proceed with a removal order [under EU law] and instead to commence a deportation order process in accordance with Section 3 of the 1999 Immigration Act [under domestic Irish law].

A proposal to make a deportation order was included with that letter and Ms Chenchooliah was invited to make submissions on the proposal. That proposal was based on Ms Chenchooliah’s unlawful residence in Ireland since 7 February 2012 and on the Minister’s opinion that her deportation would be conducive to the common good.

The Court has ruled that Article 15 of Directive 2004/38, entitled ‘Procedural guarantees’, provides, in paragraph 1 thereof, that the procedures provided for by Articles 30 and 31 of the directive are to apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health. Furthermore, Article 15(3) of Directive 2004/38 provides that the host Member State may not impose a ban on entry in the context of an expulsion decision.

Ms Chenchooliah lost her status as a beneficiary of an EU spouse as she no longer met the requirements to which those rights are subject. That loss does not mean, that Directive 2004/38 is no longer applicable where the host Member States takes a decision to expel that person.

In practical terms this means Ms Chenchooliah and all other beneficiaries in her position are entitled to have any proposal to remove them to allow for redress procedures allowing for an examination of the legality of the decision concerned, as well as of the facts and circumstances on which it is based, but also ensure that the decision in question is not disproportionate. In addition the expulsion decision that may be made in the case cannot, under any circumstances, impose a ban on entry into the territory as is the case with an Irish Deportation Order.

This is an extremely important decision from the CJEU and one that will have extensive implications in Ireland.

If you would like to discuss this further please contact me.

245 views1 comment