Gogolova & Ors -v- MJELR, [2008] IEHC 131 (2008)

Docket Number:2008 145 & 147 JR
Party Name:Gogolova & Ors, MJELR
Judge:Finlay Geoghegan J.
 
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THE HIGH COURT JUDICIAL REVIEW 2008 No. 145 & 147 J.R.BETWEENZUZANA GOGOLOVA AND EDILBERTO SANTIAGO VALCARCEL NINAAPPLICANTS 2008 No. 145 J.R.ANDBARBARA AMOATONG AND PETER ENNIMAPPLICANTS 2008 No. 147 J.R.AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORMRESPONDENTSInterim Decision of Ms. Justice Finlay Geoghegan delivered the 1st day of May, 20081. This interim decision is given in two applications for judicial review which were heard together on 17th April and in which I reserved my judgment including a decision as to whether it is necessary for me to seek a preliminary ruling from the Court of Justice pursuant to Article 234 of the EC Treaty on the interpretation of Directive 2004/38/EC to enable me give judgment in each of the applications listed in the title. The applications are regarded as test cases as there are other pending applications which are factually similar and raise similar issues.2. In each case, the applicants are a married couple, one of whom is an EU citizen living and working in Ireland and the other her spouse and a non-EU national. Both couples were married outside of Ireland and subsequent to their marriage, the non-EU spouses sought and obtained in their respective countries visas to enter Ireland. Each visa was marked "join EU spouse". On arrival in Ireland they were permitted to enter and subsequently applied for a residence card in Ireland pursuant to Directive 2004/38/EC.3. Each non-EU national spouse was refused a residence card by the respondent in reliance upon Article 3(2) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006) ("the 2006 Regulations") which were made to give effect to Directive 2004/38/EC in Ireland. This requires an applicant to submit evidence showing lawful residence in another EU Member State prior to arrival in Ireland.4. The applicants in each case were given leave by the High Court to apply inter alia for:1. An order of certiorari quashing the decision of the respondent to refuse their application for a residence card; and2. An order of mandamus requiring the respondent to grant to the second named applicant (in each case) a residence card in accordance with the applicants' rights under the EC Treaty and under Article 10 of Directive 2004/38/EC; and3. Damages.The claim for damages has been left over until after the determination of the applications for certiorari and mandamus.5. The issues of Irish law and questions of interpretation of Directive 2004/38/EC arising from the submissions of the parties on the applications for orders of certiorari of the respondent's decision to refuse residency based on Article 3(2) of the 2006 Regulations are almost identical to those raised in four applications for judicial review heard together in which I made a request for a preliminary ruling from the Court of Justice by decision of the 14th March, 2008 (Metock and Others v. Minister for Justice, Equality and Law Reform [2008] IEHC 77 and Case C- 127/08). The first question upon which I sought a ruling in those proceedings is:(1) Does Directive 2004/38/EC permit a Member State to have a general requirement that a non-EU national spouse of a Union citizen must have been lawfully resident in another Member State prior to coming to the host Member State in order that he or she be entitled to benefit from the provisions of Directive 2004/38/EC.6. The President of the Court of Justice has ordered that the accelerated procedure should be applied to Case C-127/08 pursuant to Article 23 (a) of the Statute of the Court of Justice and the first paragraph of Article 104(a) of the Rules of procedure of the Court of Justice. The Court of Justice has fixed an oral hearing in the preliminary reference on the 3rd June, 2008.7. There is difference in the factual position of the applicants herein to those in the four cases which are the subject of the preliminary reference in Case C-127/08. For the reasons set out in my decision of the 14th March, 2008, it appears to me that the immigration history of the applicants is not relevant to the question as to whether or not Directive 2004/38/EC permits a Member State to have a general requirement that non-EU national spouse of union citizen must have been lawfully resident in another Member State prior to coming to the host Member State in or that he or she be entitled to benefit from the provisions of Directive 2004/38/EC such as exists in Article 3(2) of the 2006 Regulations in Ireland.8. The parties agree that it is not necessary to seek a preliminary ruling from the Court of Justice on any additional questions on the interpretation of Directive 2004/38/EC to enable me decide the applications for certiorari herein.9...

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