In the case of C‑94/18 Chenchooliah the Court of Justice of the European Union returns to the contentious issue of the rights of family members of EU citizens. Family members like to have rights, governments like to be able to remove family members and the judges are called on time and time again to adjudicate. EU law offers a package of strong and enforceable rights which must be interpreted in order to reinforce their underlying purpose; governments really don’t like that one little bit.

No EU law residence card

The facts of this case looked slightly inauspicious. Ms Chenchooliah is from Mauritius and had lived in Ireland since 2005. She married a Portuguese national in 2011 and applied for a residence card as the family member of an EU citizen. The application was refused for lack of evidence that her husband was a worker or similar and time marched on.

In 2014, Ms Chenchooliah wrote to the immigration authorities to let them know that her husband was now in prison in Portugal and asked for permission to stay anyway. The request was refused. She was served with a deportation order that not only required her to leave Ireland but also prohibited her from returning in future. She appealed.

Here in the UK, a family member in this position would normally face removal from the UK and would only be able to rely on the very weak protection of the European Convention on Human Rights Article 8 right to private life, as (mis)interpreted in the Immigration Rules. Such a person would almost certainly lose their case. Although he or she would not usually face a deportation order prohibiting return, any period of residence deemed unlawful (for example since the EU right of residence was lost) would probably trigger a no-return ban under paragraph 320(7A) of the Immigration Rules.

Protection afforded by initial right of residence

On the face of it, Ms Chenchooliah never had a right to reside under EU law at all and even if she had, she had lost it when her husband departed from Ireland as she could not qualify for what lawyers call “retained rights of residence”. But she successfully argued that she had at least briefly had a right of residence because of the three-month rule under Article 6 of Directive 2004/38. Article says that an EU citizen and his or her family members have an initial right of residence for three months irrespective of whether they qualify as a worker and so on.

Ms Chenchooliah then argued that, having gained rights under EU law, even though she was no longer held those rights, she could only be expelled from Ireland in compliance with Articles 27 and 28 of Directive 2004/38, which provide that any expulsion decision must comply with the EU law principle of proportionality and that “the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin”.

The Court of Justice agreed, holding that a person who had previously been a qualifying family member under Directive 2004/38 but had later lost that status could only be expelled in compliance with Articles 27 and 28. Further, the automatic ban on re-entry was not permitted:

the expulsion decision that may be made in the case in the main proceedings cannot, under any circumstances, impose a ban on entry into the territory.

I confess I am pretty surprised at this outcome. It has been widely assumed, including by me, that if a person does not have EU residence rights under Directive 2004/38 then the directive does not apply, the person is subject to national law not EU law, and is therefore to be treated as a third country national would be. In Ireland that means deportation with an automatic permanent prohibition on return; in the UK it means removal with a probable time-limited prohibition on return.

The case also raises the question of what the legal position is of a family member that has lost rights of residence under EU law, has not gained rights of residence under domestic law but is protected from expulsion under EU law. It is an odd sort of legal limbo. The person would be unlawfully resident but might not be removable. They would presumably end up being granted some form of domestic law status, but it would be unlikely to be generous.

Rethink required

The judgment in Chenchooliah therefore requires a serious rethink on the treatment of family members who have lost their EU law residence rights. The same applies to recognised extended family members. The arguments against expulsion are in fact far broader than previously understood and in the UK go far beyond the very limited provisions at paragraph 276ADE of the Immigration Rules. The UK re-entry ban rules do not on the face of it breach EU law as clearly as do the Irish rules but there is an argument to be had there should a family member seek return after removal.

We are unlikely to see the UK amend the EEA Regulations to reflect Chenchooliah given Brexit is seemingly just around the corner. Amendments are asymmetrical: rapid if restricting rights, dilatory where deepening them. This should not stop judges from applying Chenchooliah immediately in appeals, though, as EU law is directly effective.

It is hard to see whether the judgment has any impact on the rights of EU citizens under the EU Settlement Scheme. For what it is worth, my first instinct is that it does not. So here in the UK Chenchooliah might have somewhat limited relevance other than in a small number of outstanding appeals.