EU retention applications after initiation of divorce
Morning all! I have a case where an EU national spouse left the State after the Civil Bill was issued, but the divorce hasn't been finalised yet. It seems clear to me from the text of the Directive and the Singh ruling that the EU national only has to be exercising EU Treaty rights in the State up until the point at which the Civil Bill issues and not necessarily thereafter, but I'm wondering if the divorce has to actually be finalised before retention will be granted (or an application even accepted). Does anyone have any experience with a similar case?
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Hi Wendy,
That's my reading of the Directive and Sigh and Aly too. However I suspect ISD won't entertain retention if the EU citizen has left - but no recent experience of this. Hope to be wrong and maybe other colleagues can offer some insights. There was a HC judgement from Maureen (pre Singh) that I used to argue in retention submissions, as it kinda supported this argument. Can't remember the name of the case.
Our clients' employees tend to switch to an Employment Permit if there are EUTR retention issues, as they normally qualify for critical skills and they can get that in 4-6 weeks (as opposed to a 1 year+ saga with the EUTR section). Alas, this involves leaving the State and then re-entering on the Permit.
In this last connection, you might be aware of the recent Hossain v DBEI judgment [2021] IEHC 152, which puts and end to the DBEI's practice to refuse to process employment permits in-country if the applicant has an EUTR (or similar) permission that won't be renewed. However DBEI/DETE is, as of last week, still refusing to process such in-country application on the basis that:
“The Employment Permits Unit are currently reviewing our procedures regarding employment permit applications from holders of a Stamp 4 (EUFam) permission, in light of a recent High Court judgement. Employment Permits Unit will publish a revised process for these types of application on the Department's website when finalised."
My hot take: I have the horrible feeling they (and Justice) are stalling, in the hope they can get the new Employment Permits Act through quickly enough - and that will nullify the Hossain judgment. The new act has this lovely provision:
an employment permit shall be refused if
‘(m)….the foreign national is in State under a permission from another Minister of Government which may not be renewed or transferred’.
See Head 17(1)(m) https://www.gov.ie/en/publication/a533a-general-scheme-of-an-employment-permits-consolidation-and-amendment-bill/
I made submissions on this at the time, when the Heads of Bill were published. Seems to me that the DoJ's long standing agenda against EUTR applicants is now reaching even the work permits arena.
I hope to be wrong on this too.
Apologies for the long rant and veering off topic!
Ángel