retention of residence non-EU spouse

Hello Everyone,

Can you please share your knowledge and give me some advise ?

I am non-EU nationality married with Italian nationality , I have stamp 4 EU Family residency card for 4 years (I have been living in Ireland for 4 years in a row now). My husband is planing to move for work to another country and I would like to remain in Ireland as I also recently found a better job, so we agreed to live for 2 countries for now. As far as I understood I would need to apply for Retention of residency (Form 5).

Can you please advise what chances that my application will be refused and what could be the reason?

About me: I am a professional, have been working in Ireland for full time all 4 years , my current salary 40k/year and have savings about 40k showing in my bank statement , I have been living on the same address all 4 years and I have no criminal record.

You have little basis for retention, which is intended for non EU people who are divorced, seperated or widowed re an EU spouse.
Your right to reside is based on your spouses right to reside, and when s/he moves to another EU state you have the right to go with them and have residence rights in that state. You don't have any right to choose your residency in this State if they have left.

You will have to apply for right to reside in your own right, eg through an employment permit or otherwise.

If your spouse only leaves the State (rather than a divorce or if he passes away) then the Retention provisions of the European Communities (Free Movement of Persons) Regulations 2015 do not apply.

Once your husband leaves the State, you must inform INIS as to this. Normally, INIS will respond looking for documentary evidence of your EU spouse's economic activity and proof of residence. You will obviously not be able to provide that if he moves, so the EU Treaty Rights Unit will give you the opportunity to make representations against revocation of your Stamp 4 EU Fam. This is a legal requirement so don't get your hopes up; once your spouse leaves the State, so do your rights to remain. Once your residence card is revoked, you have the option to appeal that decision. I suggest to appeal the decision ONLY to keep your permission in the State continuing because they will issue you with a new temporary permission on Stamp 4 pending the outcome of the appeal.

Your case sounds like it will be impacted by the CJEU decision Chenchooliah, and INIS are developing internal procedures to assess those cases in accordance with the Judgment, although they have not yet finalised their procedures so cases similar to yours are essentially on hold. The problem with that is that INIS are not giving out temporary permissions to persons potentially impacted by the Chenchooliah Judgment, hence why I suggest you appeal any revocation just so you keep your permission continuing.

Once those procedures are in place, you can only be removed from the State in accordance with the 2015 Regulations, which really narrows the grounds for removal, thus being beneficial to non-nationals generally. Before the decision in Chenchooliah, persons in your case would be dealt with by Section 3 of the Immigration Act 1999, but as you are the family member of an EU Citizen, that cannot be the case any more, and that's good for you because the power to deport under the Immigration Act 1999 is more extensive than the power to remove under the 2015 Regulations.

You will need to be strategic in handling your situation and know how to use the various procedures well in order to prevent interruption to your Stamp 4 as much as possible.