B (I) v Min for Justice and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cooke |
| Judgment Date | 15 October 2009 |
| Neutral Citation | [2009] IEHC 447 |
| Date | 15 October 2009 |
| Court | High Court |
| Docket Number | [No. 1079 J.R./2008] |
AND
[2009] IEHC 447
THE HIGH COURT
IMMIGRATION
Residency
European citizen - Free movement of persons - Permanent residence - European law - Whether period of residency prior to accession of home member state can be included in application for residency in host member state - McCarthy v Home Department [2008] EWCA Civ 641 (Unrep, English CA, 11/6/2008) approved - European Communities (Freedom of Movement of Persons) (No 2) Regulations 2006 (SI 656/2006) - Council Directive 2004/38/EC - Application dismissed (2008/1079JR - Cooke J - 15/10/2009) [2009] IEHC 447
B(I) v Minister for Justice, Equality and Law Reform
Facts: The applicant sought leave for judicial review of a decision of the respondent refusing the applicant's application for a certificate of permanent residence in the State pursuant to the European Communities (Freedom of Movement of Person) (No. 2) Regulations 2006, giving effect to Directive 2004/38/EC, on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The applicant needed five years of continuous residence for the purposes of the Regulations. The respondent contended that the full five years residence in the State had to take effect subsequent to the accession of Romania to the EU on 1 January, 2007. The applicant had been gainfully employed in the State for in excess of five years by November 2007 and argued that the provisions of the Article 16 of the Directive had direct effect and sought also to rely on the provisions of the Europe Agreements.
Held by Cooke J. that the provisions of the Europe Agreement did not require existing member States to open their labour markets to Romanian workers or to dictate the residence entitlements or conditions applied under national law to Romanian workers on their territories. Many labour markets in the existing States had not been opened to Romanian workers. The result contended for by the applicant would result in a discriminatory implementation of the Directive for Romanian nationals. An analogy based on the direct effect of the Europe Agreements did not apply to the 2006 Regulations or the 2004 Directive. The ground of illegality asserted against the Minister's decision to refuse the certificate of permanent residence had not been made out and the application had to be rejected.
Reporter: E.F
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 12(1)
EUROPEAN COMMUNITIES ACT 1972 S3
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 3(1)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 4(1)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 6(1)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 20
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 6(2)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 11(1)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 12
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 15
EEC DIR 2004/38 ART 16(1)
EEC DIR 2004/38 ART 16
VON COLSON & KAMANN v LAND NORDRHEIN-WESTFAHLEN 1984 ECR 1891 1986 2 CMLR 430
EEC DIR 2004/38 RECITAL 17
EEC DIR 2004/38 CHAPTER VI
EEC DIR 2004/38 ART 7
MCCARTHY v SECRETARY OF STATE FOR THE HOME DEPT 2008 3 CMLR 7 2008 EWCA CIV 641
EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & ROMANIA OF THE OTHER PART OJ L 357 31.12.1994 ART 38(1)
LAND NORDRHEIN-WESTFALEN v POKRZEPTOWICZ-MEYER 2002 2 CMLR 1 2002 ECR I-1049
EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & ROMANIA OF THE OTHER PART OJ L 357 31.12.1994 ART 38
EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & ROMANIA OF THE OTHER PART OJ L 357 31.12.1994 ART 42(1)
TREATY CONCERNING THE ACCESSION OF THE REPUBLIC OF BULGARIA & ROMANIA TO THE EUROPEAN UNION OJ L 157/11 21.6.2005 ANNEX VII
EEC DIR 2004/38 ART 23
TREATY CONCERNING THE ACCESSION OF THE REPUBLIC OF BULGARIA & ROMANIA TO THE EUROPEAN UNION OJ L 157/11 21.6.2005 ANNEX VII PARA 1.2
EEC REG 1612/68 ART 1
EEC REG 1612/68 ART 2
EEC REG 1612/68 ART 3
EEC REG 1612/68 ART 4
EEC REG 1612/68 ART 5
EEC REG 1612/68 ART 6
TREATY CONCERNING THE ACCESSION OF THE REPUBLIC OF BULGARIA & ROMANIA TO THE EUROPEAN UNION OJ L 157/11 21.6.2005 ANNEX VII PARA 1.9
1. By order of Finlay Geoghegan J. of 6 th October, 2008, the applicant was granted leave to apply for an order of certiorari by way of judicial review to quash a decision ("the Contested Decision") of the respondent, communicated to him by letter of 13 th March, 2008 in which the Minister refused the applicant's application for a certificate of permanent residence in the State pursuant to the European Communities (Freedom of Movement of Persons) No. 2, Regulations 2006 ("the 2006 Regulations").
2. The applicant is a national of Romania who came to this country in August, 1999. He applied unsuccessfully for asylum but since the month of October 2000 has had permission to reside here and has held a work permit which has enabled him to obtain employment. In 2002 he was joined here by his wife and children.
3. On 20 th November 2007, having resided here for over five years, through his solicitor,he applied under the 2006 Regulations for a permanent residence certificate. The Department sought and was then sent further documentation in support of the application.
4. In a letter of 13 th March 2008, the Minister gave the following reason for refusing that application:
"After an examination of your application it has been established that you are not a person who qualifies for a permanent residence certificate as it appears from the documentation provided in support of your application that you have not resided in Ireland continuously for a five year period. Your application for a permanent residence certificate has been refused for the reasons stated above. It is open to you to reapply for the permanent residence certificate when you have completed five years continuous residence in Ireland."
5.By letter of 1 st May, 2008, the applicant's solicitors queried the refusal and pointed out that since Romania had become a Member State of the European Union on 1 st January, 2007, the applicant no longer required the permission of the Minister as he had in excess of five years lawful residence in the State where he continued to be gainfully employed. The solicitor asked the Minister to reconsider his refusal but by letter of 9 th June, 2008, the refusal was confirmed. This letter said:
"In order to make an application on the basis of form EU 2 the form must be completed by a person who has been resident in this State for more than five years as a European citizen. Romania became a member of the EU on 1 st January, 2007. Your client is therefore not eligible to make an application on form EU 2 until 1 st January, 2012."
6.The legality of the Contested Decision is thus challenged on a net ground which turns on the interpretation of Regulation 12 (1) of the 2006 Regulations. In simple terms, the question raised by the application is whether, in the applicant's case, a period of five yearscontinuous residence in the State required by the Regulations can be calculated so as to include the years of the applicant's residence here prior to 1 st January, 2007 or does it, as the Minister contends, require that the full five years continuous residence in the State be subsequent to the accession of Romania to the EU on 1 st January, 2007?
7. The 2006 Regulations were adopted by the respondent pursuant to s. 3 of the European Communities Act 1972 for the purpose of giving effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 th 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.
8. The 2006 Regulations came into force on 1 st January, 2007 and it was on that basis that the applicant applied for the certificate of permanent residence in November, 2007.
9. The 2006 Regulations apply to Union citizens and, subject to certain exceptions, also to family members of a European Union citizen who are not themselves Union citizens (see Regulation 3 (1)).
10. Leaving aside for the moment the provisions dealing with the permitted and qualifying family members, the scheme of the 2006 Regulations can be effectively described as follows:
(a) A Union citizen with valid proof of nationality and identity can be refused entry into the State only on one of the grounds set out in Regulation 4 (1).
(b) A Union citizen may apply to reside in the State for up to three months if he or she holds a valid passport or national identity and does not become an unreasonable burden on the social welfare system of the State (Regulation 6 (1)).
(c) Subject to the grounds for removal from the State contained in Regulation 20,a Union citizen may reside in the State for longer than three months if in employment in the State or is self-employed; or if he or she has sufficient resources for support of self and of any dependents and has sickness insurance; or is enrolled in an educational...
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