Case C-244/13: Judgment of the Court (Second Chamber) of 10 July 2014 (request for a preliminary ruling from the High Court — Ireland) — Ewaen Fred Ogieriakhi v Minister for Justice and Equality, Ireland, Attorney General, An Post (Reference for a preliminary ruling — Directive 2004/38/EC — Article 16(2) — Right of permanent residence for family members of a Union citizen who are third-country nationals — Situation where spouses no longer live together — Immediate installation with other partners during a continuous period of residence of five years — Regulation (EEC) No 1612/68 — Article 10(3) — Conditions — Infringement of EU law by a Member State — Examination of the nature of the infringement at issue — Need for a reference for a preliminary ruling)
Date: 2014-07-10
Institutions: Court of Justice
Subjects: family migration, judicial separation, residence permit








C_2014315EN.01001502.xml










15.9.2014   


EN


Official Journal of the European Union


C 315/15





Judgment of the Court (Second Chamber) of 10 July 2014 (request for a preliminary ruling from the High Court — Ireland) — Ewaen Fred Ogieriakhi v Minister for Justice and Equality, Ireland, Attorney General, An Post
(Case C-244/13) (1)

((Reference for a preliminary ruling - Directive 2004/38/EC - Article 16(2) - Right of permanent residence for family members of a Union citizen who are third-country nationals - Situation where spouses no longer live together - Immediate installation with other partners during a continuous period of residence of five years - Regulation (EEC) No 1612/68 - Article 10(3) - Conditions - Infringement of EU law by a Member State - Examination of the nature of the infringement at issue - Need for a reference for a preliminary ruling))
2014/C 315/22
Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings


Applicant: Ewaen Fred Ogieriakhi

Defendants: Minister for Justice and Equality, Ireland, Attorney General, An Post

Operative part of the judgment







1.


Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a third-country national who, during a continuous period of five years before the transposition date for that directive, has resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded as having acquired a right of permanent residence under that provision, even though, during that period, the spouses decided to separate and commenced residing with other partners, and the home occupied by that national was no longer provided or made available by his spouse with Union citizenship;










2.


The fact that, in relation to a claim for damages for infringement of EU law, a national court has found it necessary to seek a preliminary ruling on a question concerning the EU law at issue in the proceedings on the substance must not be considered a decisive factor in determining whether there was an obvious infringement of that law on the part of the Member State.






(1)  OJ C 189, 29.6.2013.