John Gormley (Dublin South East, Green Party)
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Question 176: To ask the Minister for Justice, Equality and Law Reform if his attention has been drawn to the case of a person, details supplied, who has applied for residency here; if this person will be eligible for residency if their spouse were to undertake a third level course here; and if he will make a statement on the matter. [21730/05]

Michael McDowell (Dublin South East, Progressive Democrats)
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The person in question is a failed asylum seeker who is the subject of a deportation order. He subsequently sought to invoke European Union law on free movement to have that order set aside on the basis of his marriage to an EU national worker. Following consideration of the relevant provisions as enshrined in Regulation (EEC) No 1612/68, the application was refused as the EU national was not working in the State.

The European Court of Justice has acknowledged that Article 1 of Directive 93/96 allows member states to require of students who are nationals of a different member state and who wish to exercise the right of residence on their territory that they satisfy the relevant national authority, by means of a declaration, that they have sufficient resources to avoid becoming a burden on the social assistance system of the host member state during their period of residence. Furthermore, where a member state takes the view that a student who has recourse to social assistance no longer fulfils the conditions of his right of residence, it may take measures, within the limits imposed by Community law, either to withdraw his residence permit or not to renew it. In addition the person in question must have sufficient resources to support his non-EEA national spouse. Thus, it would appear on the basis of the information available that the provisions in question are not applicable.