THE EUROPEAN Commission has rejected a request from the Government to amend a key piece of European legislation that enables EU citizens to travel freely across the union.
Justice commissioner Jacques Barrot said yesterday he had taken note of the concerns of "his friends in Ireland" but concluded there was no need to amend the directive, which he said guaranteed one of the "fundamental freedoms" of the union.
He also strongly criticised member states for failing to implement key parts of the 2004 directive on the right of EU citizens and their family members to move and freely reside within the union. "Flaws in the implementation of EU law in this field might result in a breach of the principles lying at the very core basis of the European construction. This is why the commission will step up its efforts to ensure that EU citizens and their families effectively and fully enjoy their rights under the directive," said Mr Barrot, who has not ruled out taking legal action against member states that refuse to implement the key directive.
The commission's decision will be a huge disappointment for the Government, which has lobbied hard - along with EU partners Denmark and Austria - to persuade the commission to look again at the directive.
The Government wants to amend a key part of the directive that gives non-EU spouses of European citizens the right to live in Ireland. Its opposition to the directive was sparked by a landmark European Court of Justice (ECJ) decision in July, which ruled that the Government had incorrectly transposed the EU directive into Irish law by including restrictions on the rights of non-EU spouses to reside in Ireland.
In each of the four test cases ruled on by the court, the couples were married in the Republic and the non-EU national husbands had all unsuccessfully applied for asylum here. The Government argued it should be allowed to deport non-EU spouses who had not lived in another EU state prior to arriving in Ireland, to better control immigration into the EU and to combat "marriages of convenience".
But the ECJ dismissed its concerns, ruling that the Irish authorities had incorrectly transposed the 2004 directive and was unfairly deporting the spouses.
In September, Irish officials presented a comprehensive report on the issue to EU ministers and the justice commissioner which argued that the directive encouraged "marriages of convenience" that enabled non-EU spouses to reside in Ireland. It said 4,600 people applied for Irish residency in the past two years on the grounds that their spouses were EU citizens from outside Ireland, including some 600 each from Nigeria and Pakistan.
It underlined the high rate of marriage between Latvians and immigrants from the Indian subcontinent. Ten per cent of all applications were from Latvians, and 50 per cent of them were married to Pakistani, Indian or Bangladeshi nationals, said the report, which concluded that the figures were "so statistically abnormal that they cannot have occurred by chance". Irish officials asked for the directive to be reopened.
But the commission's report says the EU law is "fundamental not only for the eight million EU citizens who reside in another member state and their family members, but also for the millions of EU citizens travelling every year inside the EU". It notes the concerns raised over the Metock judgment but said that the directive does not prevent member states from taking action against proven cases of marriages of convenience.
The commission says it will come forward with guidelines on how the directive should be implemented in the spring, but there is no question of redrafting it. One EU official said trying to redraft the directive could prompt chaos, with member states seeking to reopen other issues governing free movement of EU citizens.