CJEU backs State’s right to probe marriage fraud
The EU’s highest court has found that a member state can investigate fraud involving a suspected marriage of convenience even after the person concerned has become a citizen.
The Court of Justice of the EU (CJEU) was responding to questions referred to it by Ireland’s Court of Appeal after a third-country national challenged a decision made by the Minister for Justice.
The person at the centre of the case, RS, settled in Ireland as a student and married an EU citizen, who had exercised her EU freedom-of-movement rights, shortly before his residence permit expired.
Challenge
He acquired Irish nationality in 2015, but Irish authorities suspected that the right of residence was obtained fraudulently through a marriage of convenience.
The minister then adopted decisions finding fraud and an abuse of rights, and considered that the rights derived from an EU directive on freedom of movement must be regarded as having been withdrawn from the outset.
RS challenged those decisions, arguing that, having become an Irish citizen, he was no longer subject to that directive.
Residence based on national law
In its judgment, the CJEU held that member states could investigate past fraud and establish its existence, even if the person concerned had acquired the nationality of the host country.
The court stated that the directive did not, in principle, govern the situation of a person who had acquired the nationality of the host state and whose residence was now based on national law.
The judges also held that rules in the directive on the prevention of fraud and abuse of rights also applied to past situations.
“They allow member states to take measures concerning rights conferred previously, even if the person is no longer, at the time of the authorities’ intervention, a beneficiary of the directive.
Consequences
“Any contrary interpretation would undermine the objective of combating marriages of convenience and fraudulent practices, which are often detected belatedly,” the court stated.
The judges also held that member states’ powers to investigate suspected fraud or abuse must be exercised in accordance with the principle of proportionality and the procedural safeguards in the directive.
They concluded that such powers “may allow consequences to be drawn at a later stage – including the withdrawal of a union citizen’s nationality and, consequently, their status as a union citizen – provided that the requirements of EU law are complied with”.