Retention rights are governed by Directive 2004/38/EC, which has been transposed into Irish law through the European Communities (Free Movement of Persons) Regulations 2015. Under these provisions, a non-EEA national may be eligible to retain their residence if:

• The EU citizen has passed away and the applicant has lived in Ireland for at least one year prior to their death.
• The EU citizen has left Ireland, leaving minor children under the legal custody of the applicant who are enrolled in an educational institution in Ireland.
• The marriage or civil partnership has been legally dissolved, provided certain conditions are met.

Retention of Residence in the Event of Death of an EU Citizen

If an EU citizen passes away, the non-EEA family member may retain their residence rights if the following conditions are met:

✔️ The applicant resided in Ireland with the EU citizen for at least one year before their death.
✔️ The applicant is employed, self-employed, or has sufficient financial resources to support themselves and any dependents.
✔️ If the EU citizen’s children are enrolled in education, the child and the parent with custody can remain in Ireland until the completion of their studies.

Retention of Residence in the Event of the EU Citizen’s Departure

If an EU citizen leaves Ireland, retention of residence may be granted only if the applicant has legal custody of minor children in Ireland. Key conditions include:

✔️ The minor children must be residing in Ireland and attending an educational institution.
✔️ The applicant must have legal custody of the children, either through mutual agreement with the EU citizen or a court order.
✔️ The right of residence continues until the children complete their studies.

Retention of Residence in the Event of Divorce or Separation

If a marriage or civil partnership ends, a non-EEA national may retain their right to reside in Ireland if certain criteria are met:

✔️ The marriage or partnership lasted for at least three years, with at least one year spent residing in Ireland before divorce proceedings began.
✔️ The non-EEA national must not become a financial burden on the State and must either be employed, self-employed, or have sufficient financial resources.
✔️ If the marriage ended due to domestic violence, the applicant may still be eligible for retention of residence.

Key Legal Precedents on Retention of Residence Rights

Several important legal cases have clarified the rules on retention of residence following a divorce or separation:

• Khalid Lahayani v. Minister for Justice (2013 IEHC 176) – This case expanded the interpretation of the Directive, ensuring that non-EEA spouses are not automatically removed from the State when a marriage ends.
• Kuldip Singh v. Minister for Justice (C-218/14) – The Court of Justice of the European Union (CJEU) ruled that a non-EEA spouse loses their right to reside if the EU citizen leaves Ireland before divorce proceedings begin.
• X v. Belgium (C-930/19) – Confirmed that victims of domestic violence can retain their residence rights even if the divorce is initiated after the EU citizen has left the country.

These cases highlight the importance of acting promptly if an individual wishes to retain their residence status after the breakdown of a relationship.

How to Apply for Retention of Residence in Ireland

To successfully apply for retention of a residence card, an applicant must submit a comprehensive application to the EU Treaty Rights Division of the Department of Justice. A well-prepared application should include:

✔️ A full immigration history of the applicant.
✔️ Proof of employment, self-employment, or sufficient financial resources.
✔️ Details of the relationship with the EU citizen.
✔️ Evidence of residency in Ireland for at least one year before the event (death, divorce, or departure).
✔️ Legal documentation related to divorce, annulment, or separation.
✔️ Supporting documents proving dependency, custody of children, or domestic violence (if applicable).
✔️ Completed Form EUTR5.

Revocation of a Residence Card

The Minister for Justice has the authority to revoke a residence card if:

• The holder is no longer entitled to it (e.g., the EU citizen has left Ireland, the marriage has ended, or the EU citizen is no longer employed).
• There are allegations of fraud or abuse, such as a marriage of convenience.

If a residence card is at risk of revocation, the applicant will receive a written notice from the Department of Justice and have 15 working days to submit representations.

Processing Times & Delays

The Department of Justice states that retention applications may take up to six months to process. However, in many cases, applications can take significantly longer. If an application experiences an unreasonable delay, legal action such as a judicial review in the High Court may be required.

If a residence card expires while a retention application is pending, applicants may request a temporary residence permission for six months, which can be extended until a decision is made.