Oral Hearings – EU Treaty Rights

A non-EEA national spouse, for example, of an EU citizen can acquire residence rights in Ireland arising from the Free Movement of Persons Regulations of 2015.

This spouse family member can apply for a residence card.

A residence right can be revoked if the permission was obtained as a result of an abuse of rights or fraud, such as, if a marriage between an EU citizen and non-EEA person was not genuine, and instead is a marriage of convenience. Factors considered when assessing  if a marriage constitutes a marriage of convenience are the nature of the ceremony, have the parties resided together, shared outgoings / income, the nature of the relationship etc. amongst a list of other factors set out in S.28 of the 2015 regulations.

Fair decision making process requires that the persons concerned should receive a summary of the claims or objections raised in writing and were provided with the opportunity to respond in a period of time, such as, twenty-one days. The Supreme Court concluded in E. V. M for Justice, Equality & Law Reform of 2011 that “The rules of natural justice require the decision maker to give reasonable notice to the affected person of the substance of any matters being raised which are adverse to his interest. It is not necessary that the entire of every detail of the case against him be notified. The test is whether he has a fair opportunity to prepare himself and to respond”.

There is no express right in the 2015 regulations for an oral hearing that would permit parties put their side across in person. Having an oral hearing which would permit parties to put their side across in person would be helpful to ensure a fair process in accordance with natural justice occurs, in our opinion.

In D.V. Minister for Justice 2020 it was noted that procedural safeguards ought to be available for the process to be fair such as: (1) an oral hearing before a Court, or before an independent administrative tribunal, where there is a serious issue of credibility; (2) a fair opportunity to state the case and know the case to be met; and (3) the right to an impartial and independent decision-maker.

At the heart of a claim that a marriage is one of convenience and therefore not genuine, is the personal credibility of both parties concerned, so it could be very helpful, in our opinion, if an assessment interview was conducted, so the parties could put their side across to the decision maker in question.

Immigration Lawyer

If you have questions about EU Treaty Rights, you can speak with an immigration lawyer on (01) 546 1121 or  (052) 612 1999.

Disclaimer

Please be advised that the above-mentioned material is intended as an overview and as a broad outline of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.