Family rights and reverse discrimination: the impact of EU law on cohabiting couples in the Irish immigration system

• Date: 01 January 2011
• Author: Anna Hickey And Ruth Ní Fhíonnán

Family Rights and Reverse Discrimination:

Cohabiting Couples in the Irish Immigration

System and the Impact of EU Law

AN NA H ICKE Y AN D RU TH F ANN ING

Introduction

The treatment of cohabiting couples, both same-sex and opposite-sex, in the

context of immigration in Ireland is a matter of current concern. According

to the latest published census, cohabiting couples now make up 11.6 per cent

of all family units in Ireland1and, between 1996 and 2006, there was almost

a four-fold rise in the number of unmarried couples livin g together.2In the

same period, there has also been an un precedented increa se in the number

of immigrants coming to Ireland. For example, in 2008 alone, 83,800 people

migrated to Irela nd.3Despite media r eports that migrants are returning

home as a result of the economic downtown4, l atest figures5highligh t that

at the end of 2010 there were 383,400 foreign nationals in Ireland over the

age of fifteen, representing 10.91 per cent of the population of 3,512,200.

At present, cohabiting couples are treated less favourably than married

couples in a range of areas: for example, they have fewer p roperty and

succession rights an d are u nable to claim certain tax and socia l welfare

benefits.6There is also a marked difference in treatment of Irish cohabiting

couples vis-à-vis cohabiting couples where one or both partners is an

immigrant. We will explore th is difference in treatme nt in this article. We

will further examine how immigrant cohabita nts are treated differently in

Ireland, depending on whether the immigrant’s situation falls within the

scope of EU law. It will be argued that the position under immigration law

is more favourable for cohabiting partners of non-Irish EU citizens than for

the cohabiting partners of Irish citizens, in a purely internal situation.7This

1“Law needs to be mindful of cohabiting couples” The Irish Times 27 March 2008

2Editorial, “Cohabiting Couples” The Irish Times 7 April 2010

3http:// www.cso.ie/r eleasesp ublicati ons/docu ments/po pulatio n/curren t/popmig .pdf

[Accessed 13 March 2011]

4http://www.guardian.co.u k/world/2008/may /04/ireland.immig ration [Accessed 29

March 2011]

5Quarterly National Household Survey (Fourth Quarter) Report www.cso.ie [Accessed

29 March 2011]

6Law Reform Commission “Consultation Paper on the Rights and Duties of Cohabitees”

April 2004

7Cohabiting partners of EU citizens can generally avail of the residency rights provided

for in Directive 2004/38/EC. As discussed in more detail below, unless an Irish citizen

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