Following a High Court decision handed down last week, the government has repealed its June 2010 policy which restricted access to employment for family members of EU citizens. Decsi v. the Minister for Justice and Law Reform involved two test cases; a Hungarian citizen married to a Chinese woman, and a Latvian citizen married to a Pakistani man. It challenged the government policy in June to issue a Stamp 3 residency permit to all non-EU citizen family members of EU citizens who applied for a residence card under the 2004 EU Directive on the Free Movement of Persons (2004/38/EC). This change in policy restricted their right to work until their residence card was processed, a process which usually takes six months. This changed the previous policy of issuing a Stamp 4 permit, which permitted them to work.

Article 23 of the Directive provides that the family members of an EU citizen who have the right of residence in a Member State “shall be entitled to take up employment or self-employment there”, irrespective of their own nationality. Article 25 further clarifies that possession of a residence card “may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality”.

The test cases, taken by Brophy Solicitors and Stanley and Co. Solicitors, were given a priority hearing date due to the urgent need to protect the applicants’ jobs. Mr. Justice Cooke issued a declaration that Mr. Desci’s wife has the right to work in Ireland from the date of acknowledgement from the Department of Justice and Law Reform of her residence application, with a similar statement being issued for the second test case. The case was adjourned in order to prepare the full judgment.

By Admin 11th August 2010