EU Treaty rights – retention in the case of divorce or separation

We are frequently asked to advise clients on their position where they obtained a permission to remain in the State based on their marriage to an EAA national and that relationship has irretrievably broken down. Clients often want to know what rights, if any, they have to retain their residency on an individual and personal basis following a divorce, separation or where the spouse has left Ireland altogether.

Directive 2004/38 EC provides for retention in certain circumstances. A particular difficulty arises where a couple have separated and intend on divorcing but aren’t yet entitled to institute proceedings under the Family Law (Divorce) Act 1996. The High Court recently considered this in the case Lahyani v The Minster for Justice and Equality and held that the directive must be read in a manner that allows the non-EU spouse to commence and prosecute divorce proceedings before their residency is revoked.

Unfortunately sometimes clients don’t seek legal assistance until their permission to remain has expired. Applicants are obliged to inform the Department of Justice of any material change of circumstances immediately, so it is very important to obtain advice at an early stage. Contact Sarah McDonald solicitor if you have any queries in relation to EU Treaty Rights at smcdonald@mcgrathmcgrane.ie