The High Court dismissed a Moroccan national’s challenge to the revocation of his Irish residence permission, but said a non-EU spouse deserted by an EU citizen may, in other circumstances, need a reasonable time to begin and pursue divorce proceedings before residence rights are revoked.
The judicial review concerned a November 2011 decision by the Minister for Justice to revoke Khalid Lahyani’s five-year residence permission. The court considered whether Article 13(2)(a) of the EU Free Movement Directive could protect him after his French wife left Ireland, even though they remained married.
The couple married in Morocco in March 2007. His wife moved to Limerick in 2007 to work, and Mr Lahyani joined her later that year. He received permission to live and work in Ireland in September 2008. His wife left Ireland and returned to France; the judgment records that she had stopped working and was no longer exercising EU free movement rights in Ireland by 2010.
The Minister asked Mr Lahyani in December 2010 for evidence that he had begun divorce proceedings. He replied in January 2011 that he had not started proceedings and said he had been advised he would need to return to Morocco. A further proposal to revoke his permission followed in February. The Minister revoked it in November 2011.
Justice M. Clark held that the couple’s marriage had lasted more than three years, including at least a year in Ireland, but that those conditions alone did not resolve the case. At the time of revocation, Mr Lahyani was not divorced, had not started proceedings and had taken no discernible steps to do so, despite being alerted to the issue more than 11 months earlier. The court concluded that the Minister had allowed a reasonable period in the circumstances and had not been shown to have erred in law. It dismissed the application for judicial review and the reliefs sought.
The judgment also explained that Article 13 should not always be read to require a divorce to be completed while the EU spouse remains in the host country. Where a Union citizen deserts a non-EU spouse, the court said, a reasonable period may be needed to begin and pursue divorce proceedings. That period does not create an indefinite right to remain, and the assessment depends on the circumstances of each case.
The court assessed the Minister’s decision based on information available when it was made. It therefore did not rely on later information, including that Mr Lahyani began divorce proceedings in Morocco in December 2011. The judgment records that the court did not grant a later request to require the Minister to allow him to re-enter Ireland to travel to Morocco.