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EU Court Ruling Re Irish Law on 3rd Country Nationals
On the 3rd June 2008, the European Court of Justice (ECJ) heard arguments on whether, non-EU nationals who are spouses of EU nationals, can continue to live in Ireland. The matter arose from a case in the Irish High Court, whereby, Mrs Justice Finlay Geoghegan, referred several questions to the ECJ for clarification in relation to Directive 2004/38/EC.
Directive 2004/38 merged into a single instrument, all the legislation on the right of entry and residence for EU citizens, and was transposed into Irish law by the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006).
EU directives are the most flexible form of EU lawmaking. They are binding on all member states but are flexible as to their method of implementation. In practical terms, a directive states a certain rule and every member state must apply that rule so that the same result is achieved across the EU. However, each member state is free to transpose the rule into their law by any way they see fit, provided that the same end result is achieved. This form of EU lawmaking has it’s advantages in that it’s flexibility allows a directive to be introduced without much difficulty across the differing legal systems of the member states.
This, however, can give rise to challenges in court on the basis that a member state is not implementing a directive correctly, so each member state must be very careful as to the introduction of rules implementing EU directives in order to avoid litigation which challenges the implementation of these rules.
In this specific case, 4 applicants challenged Ministerial decisions in the High Court. In each case, the applicants, all non-EU nationals, challenged the decision of the Minister for Justice, Equality & Law Reform, which refused to grant them leave to remain in Ireland on the basis of their marriage to EU national spouses. These cases turn on a technical point of law in that it is claimed that, the Irish rules which implement the EU directive 2004/38, do not transpose the directive in a manner consistent with the wording of the directive itself.
The 2004/38 EC directive holds that, the freedom to reside and move freely within the territory of the EU is a fundamental freedom for all EU citizens, and that this should be extended to their family members “irrespective of their nationality”. The directive also holds that there are limits to this right of free movement, namely that the right can be limited for reasons of public policy, public security or public health only. In the case of the applicants, they were refused leave to remain in Ireland on the basis that they had not resided previously in another EU member state prior to arriving in Ireland.
The Irish laws introducing the EU Directive place an extra requirement on the (Non EU) family members of EU Citizens in that, they must enter the State with the family member from another EU state, or they must have been legally present within an EU state before entering Ireland to join the EU citizen. Regulation 6(2)b) of the Irish legislative instrument sets out that the (Non EU) family members of EU nationals have analogous rights to their EU citizen family members in terms of free movement but it limits these rights in Regulation 3(2) as set out above. The limitation of prior lawful residence is not a limitation imposed on grounds of public policy, public security or public health, thus the applicants would argue that the Irish rules are not consistent with the Directive.
From the High Court case, Mrs Justice Finlay Geoghegan has referred 4 questions to the ECJ:
- Does Directive 2004/38 allow a Member State to have a general requirement of prior lawful residence for a non-EU national spouse?
The next 3 questions were questions ancillary to the first question, required in order for the judge to be able to make an effective judgment in the case, in the event of a negative answer to the first question.
- Where a non (EU)-national, spouse of a Union Citizen, who has a right of residence in a host member state, asserts that right of residence under the terms of the Directive and applies for a residence card does he/she need to be within the scope of the directive on:
- the date upon which the non-EU national entered the host EU state or
- the date of application of the residence card
- any other date?
- Does a non-(EU)-national who, at the date of application for a residence card, is :
- a spouse of a Union Citizen who resides in the host member state,
- is then residing in the host Member State with the Union Citizen as his / her spouse
- come within the scope of the directive, regardless of when/where the marriage took place or when/how the non-EU national entered the host member state?
- Does the directive include within it’s scope the spouse of a Union Citizen, who at the date of application for residence card is:
- a spouse of a Union Citizen who resides in the host Member State and
- is residing in the host Member State with the Union Citizen as his/her spouse and
- had entered the host state independently of the Union Citizen and subsequently married the Union Citizen in the host member state.
The answers to the above questions, supplied by the ECJ, are significant for many non-nationals currently in Ireland in similar situations and will be significant in terms of the fundamental freedom of the free movement of EU citizens. The Irish rules impede the free movement of (Non EU) family members of EU citizens which in effect, restricts the free movement of EU citizens as a person would not wish to reside in another country if their family members cannot come with them!
This case received front page coverage in the Irish Times (Tuesday June 3rd 2008 headline - “EU Court to Rule on Ban on Non-EU Spouses”) and has been the subject of debates on the national radio station RTE 1. Add to this the fact that, at the hearing in the ECJ, no less than 9 EU member states made their opinions known by making representations/arguments orally (2 member states made written submissions also) and one can see that, it is the general consensus that the ruling from the European Courts in this case will be one which will have significant consequences for immigration law throughout Europe for some time to come.
THE EUROPEAN COURT OF JUSTICE AND THE IRISH HIGHT COURT HAVE NOW RULED THAT A NON EU SPOUSE AND THEIR FAMILY DEPENDANTS ARENOW ENTITLED TO LIVE AND RESIDE WITH THEIR EU SPOUSE PROVIDED THAT EU SPOUSE IS RESIDING IN ANY EU COUNTRY OTHER THAN HIS OWN NATIONAL COUNTRY
