THE GOVERNMENT has repealed recently introduced restrictions preventing the family members of EU citizens from working while their residency applications are being considered after losing two test cases.
The rules had been introduced in June due to Government concerns over rising unemployment and its ongoing campaign to target so-called “sham marriages” between EU citizens and people from states outside the union.
The restrictions removed the right to work for non-EU family members and spouses of EU citizens while they await a decision on their right to residency in Ireland. Residency applications generally take six months to process.
The rules would have had an impact on about 2,500 people, who are expected to apply for residency in the Republic this year based on legal rights established by EU law.
Last Friday the High Court made orders granting the Chinese wife of a Hungarian citizen and the Pakistani husband of a Latvian citizen the right to work while their applications are being considered. Mr Justice John Cooke said he would deliver his reasons for the decision at a later date but made the declarations because both applicants could have lost their jobs due to the restrictions.
The first case involved Hungarian Peter Decsi and his Chinese wife Huan Zhao, who both work at G45 Security. They got married in March this year and Ms Zhao applied for residency. Ms Zhao, who had been entitled to work part-time on her previous student visa, took up a full-time job at the company.
When the new restrictions were introduced in June by the Government – preventing the non-EU spouses of EU citizens from working while a residency application is considered – Ms Zhao faced the prospect of losing her job and not being allowed to work at all.
Ms Zhao, who was represented by Brophy Solicitors, argued successfully that her rights under EU law were breached by the new regulations preventing her from working and they “seriously jeopardised” her current employment.
The key legal point is based on her rights under the EU’s freedom of movement directive, which says “irrespective of nationality, the family members of a union citizen, who have the right of residence in a member state, shall be entitled to take up employment”.
The second test case, which was taken by Stanley and Co Solicitors in Cork, involved a Latvian wife and a Pakistani husband. A similar declaration was made in this case by Mr Justice Cooke.
The Immigrant Council of Ireland (ICI), which campaigned against the new restrictions when they were introduced in June, welcomed the rulings yesterday and renewed its call on the Government to scrap the regulations.
“Our concern was that the new policy would cause unnecessary hardship for migrants lawfully living in Ireland,” said Catherine Cosgrave, ICI senior solicitor. “Friday’s court decision will provide clarity and reassurance to other families, and employers, who may not have known if a non-EU citizen family member has the right to work while they wait for their residence card to be processed. The law is clear – they do.”
In a statement the Department of Justice said last night that in light of the judgment it would revert to its previous policy of granting non-EU family members the right to work while a residency application was being considered.
However, the department said it would “review the issue when the written judgment is available” and said there was no requirement at this point to amend the immigration regulations.
New figures released by the department show 2,712 people applied for residency this year based on legal rights established by EU law. In the year to July 1,463 applications were received.
The High Court decision represents a second major legal defeat for the Government in its attempt to target “sham marriages”.