Lahyani v Min for Justice and Others
| Jurisdiction | Ireland |
| Judge | MS JUSTICE M. CLARK, |
| Judgment Date | 18 April 2013 |
| Neutral Citation | [2013] IEHC 176 |
| Docket Number | [2012 No. 115 JR] |
| Court | High Court |
| Date | 18 April 2013 |
[2013] IEHC 176
THE HIGH COURT
EEC DIR 2004/38 ART 13(2)(A)
KADI v COUNCIL OF THE EUROPEAN UNION 2009 1 AC 1225 2009 3 WLR 872 2010 AER (EC) 1105 2008 ECR I-6351 2008 3 CMLR 41
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 10
TREATY ON EUROPEAN UNION ART 2
TREATY ON EUROPEAN UNION ART 6
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 45
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 45(2)
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (AMDT) REGS 2008 SI 310/2008
EEC DIR 2004/38 RECITAL 15
DIATTA v LAND BERLIN 1985 ECR 567 1986 2 CMLR 164
EEC DIR 2004/38 ART 13(2)(C)
METOCK & ORS v MIN FOR JUSTICE 2009 QB 318 2009 2 WLR 821 2009 AER (EC) 40 2008 ECR I-6241 2008 3 CMLR 39
CUSTOMS & EXCISE CMRS v APS SAMEX & ANOR 1983 1 AER 1042 1983 3 CMLR 194
SECRETARY OF STATE FOR WORK & PENSIONS v LASSAL 2011 AER (EC) 1169 2011 1 CMLR 31 2010 ECR I-9217
EEC DIR 2004/38 ART 16(4)
LAWLOR v MIN FOR AGRICULTURE & DUFFY 1990 1 IR 356 1988 ILRM 400 1987/7/1798
BOSPHORUS HAVA YOLLARI TURIZM VE TICARET ANONIM SIRKETI v MIN FOR TRANSPORT & ORS 1994 2 ILRM 551 1994/8/2131
SHYLLON v MIN FOR JUSTICE UNREP HERBERT 28.4.2010 2010/47/11812 2010 IEHC 153
EEC DIR 2004/38 ART 7(1)(A)
EEC DIR 2004/38 ART 7(1)(B)
EEC DIR 2004/38 ART 7(1)(C)
EEC DIR 2004/38 ART 7(1)(D)
IIDA v STADT ULM 2013 FAM 121 2013 2 WLR 788 2013 1 CMLR 47
AMOS & THEOPHILUS v SECRETARY OF STATE FOR THE HOME DEPT 2011 1 WLR 2952 2011 3 CMLR 20 2011 EWCA CIV 552
EEC DIR 2004/38 ART 13(2)(B)
EEC DIR 2004/38 ART 13(2)(C)
EEC DIR 2004/38 ART 13(2)(D)
TREATY OF ROME ART 48
EEC REG 1612/68 ART 10
EEC REG 1612/68 ART 11
EEC REG 1612/68 ART 12
EEC DIR 2004/38 RECITAL 24
EEC DIR 2004/38 ART 16
GBC ECHTERNACH & ANOR v MINISTER VAN ONDERWIJS EN WETENSCHAPPEN 1989 ECR 723 1990 2 CMLR 305
BAUMBAST v SECRETARY OF STATE FOR THE HOME DEPT 2002 ECR I-7091 2002 3 CMLR 23 2003 ICR 1347
IBRAHIM v HARROW LONDON BOROUGH COUNCIL 2010 PTSR 1913 2010 2 CMLR 51 2010 ICR 1118 2010 HLR 31
TEIXEIRA v HARROW LONDON BOROUGH COUNCIL 2010 PTSR 1913 2010 2 CMLR 50 2010 ICR 1118 2010 HLR 32
R v IMMIGRATION APPEAL TRIBUNAL & SINGH, EX PARTE SECRETARY OF STATE FOR THE HOME DEPT 1992 3 AER 798 1992 ECR I-4265 1992 3 CMLR 358
MINISTER VOOR VREEMDELINGENZAKEN EN INTEGRATIE v EIND 2008 AER (EC) 371 2007 ECR I-10719 2008 2 CMLR 1
OKAFOR v SECRETARY OF STATE FOR THE HOME DEPT 2011 1 WLR 3071 2011 3 CMLR 8 2011 EWCA CIV 499
ZIOLKOWSKI & SZEJA v LAND BERLIN 2012 IMM AR 421 2012 INLR 467
EEC DIR 2004/38 RECITAL 28
EMSLAND-STARKE GMBH v HAUPTZOLLAMT HAMBURG-JONAS 2000 ECR I-11569
CENTROS LTD v ERHVERVS-OG SELSKABSSTYRELSEN 2000 CH 446 2000 2 WLR 1048 2000 AER (EC) 481 1999 ECR I-1459 1999 BCC 983
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 24
ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 AER (EC) 491 2011 ECR I-1177 2011 2 CMLR 46 2011 2 FCR 491
EUROPEAN UNION
Free movement of persons
Right of citizens and family members to move and reside freely - Derivative right of residence of non-EU spouse of Union citizen - Breakdown of marriage - Departure of EU spouse from State - Prevention of abuse of rights - Whether non-EU spouse right to remain pending divorce proceedings where Union spouse no longer in state - Diatta v Land Berlin (Case C-267/83) [1985] ECR I-567 approved - Amos and Theophilus v Secretary of State for the Home Department [2011] EWCA Civ 552, [2011] 1 WLR 2952; Baumbast and another v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-07091; Bosphorous v Minister for Transport [1994] 2 ILRM 551; Centros Limited v Erhvervs-og Selskabsstyrelsen (Case C-212/97) [1999] ECR I-01459; Customs and Excise Commissioners v ApS Samex [1983] 1 All ER 1042; Echternach and another v Netherlands Minister for Education and Science (Joined cases 389 and 390/87) [1989] ECR 723; Emsland-Starke GmbH v Hauptzollamt Hamburg-Jonas (Case C-110/99) [2000] ECR I-11569; Kadi and another v Council and Commission (Joined cases 402 and 415/05) [2008] ECR I-6351; Lawlor v Minister for Agriculture [1990] 1 IR 356; [1988] ILRM 400; Iida v Stadt Ulm (Case C-40/11), (Unrep, ECJ, 8/11/2012); London Borough of Harrow v Nimco Hassan Ibrahim and another (Case C-310/08) [2010] ECR I-1065; Metock and others v Minister for Justice, Equality and Law Reform (Case C-127/08) [2008] ECR I-6241; Minister voor Vreemdelingenzaken en Integratie v R.N.G. Eind (Case C-291/05) [2007] ECR I-10719; Okafor and others v. Secretary of State for the Home Department [2011] EWCA Civ 499, [2011] 1 WLR 3071; The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] ECR I-4265; Secretary of State for Work and Pensions v Lassal (Case C-162/09) [2010] ECR I-9217; Shyllon v Minister for Justice, Equality and Law Reform [2010] IEHC 153, (Unrep, Herbert J, 28/4/2010); Teixeira v Lambeth London Borough and another (Case C-480/08) [2010] ECR I-1107; Zambrano v Office national de l'emploi (Case C-34/09) [2011] ECR I-1177 and Ziolkowski, Szeja and others v Land Berlin (Joined cases 424 and 425/10), (Unrep, ECJ, 21/12/2011) considered - European Communities (Free Movement of Persons) (No 2) Regulations 2006 (SI 656/2006), reg 10 - European Parliament and Council Directive 2004/38/EC, articles 12 and 13 - Relief refused (2012/115JR - Clark J - 18/4/2013) [2013] IEHC 176
Lahyani v Minister for Justice and Equality
Facts: The applicant was a Moroccan national who had become estranged from his French wife. Whilst the couple were together, they had resided for a period of time in Ireland when the wife was employed there but when the marriage broke down, she had left the state. The respondent sought to terminate the applicant"s five year residency permit for this reason. The applicant brought judicial review proceedings on the basis that he was lawfully resident when his wife left the state and as he had the intention of commencing divorce proceedings, he should be allowed to remain pursuant to Article 13 of Directive 2004/38/EC ('the Directive') which allows non-EU family members to retain their right of residence in the event of divorce. He claimed he had enjoyment of this right as he had been married to his EU national wife for over 3 years, with the couple being resident in Ireland for at last 1 year before divorce proceedings were initiated.
The respondent claimed that the applicant had no right of residence as the correct interpretation of the Directive was to facilitate the free movement of EU citizens by allowing non-EU family members to travel with them. On that basis, it was claimed that the applicant lost his right to reside in the state when his wife left. In terms of Article 13 of the Directive, it was argued that its purpose was to protect non-EU members in the face of divorce whilst their spouse was living in the host state, but not when they left.
Held by Clark J that the question to be determined by the court was whether the applicant could retain his right of residence under Article 13 of the Directive despite the departure of his European Union member spouse even though he had not yet gained a decree of divorce. On an examination of Article 13 of the Directive, it was held that any interpretation should be broad to cover scenarios where a married couple separate and the EU member simply leaves the state before matrimonial proceedings can be issued leaving the non-EU member remaining. However, where the marriage is held not to have broken down irretrievably, the non-EU member would be expected to also leave the state. Whether a right is conferred on the non-EU member to remain within the state would therefore be dependant on the circumstances, with particular attention paid to how long after the separation matrimonial proceedings were initiated and whether there was any chance of reconciliation of the married couple.
In the present case, the respondent had sought a revocation of the applicant"s right of residence over 11 months after his estranged wife left the state. In that time, matrimonial proceedings had not been initiated. It was therefore held that steps towards a decree of divorce had not been made within a reasonable time meaning the applicant could not claim a right of residency pursuant to Article 13 of the Directive despite its wide interpretation. The applicant"s right was held to be derivative from that of his EU member wife and it was only at the point of divorce (and as long as the relevant length of marriage prerequisites were met) that he would gain an independent right. When the applicant"s wife left the state, he would have been afforded a reasonable period of time to commence and prosecute divorce proceedings to achieve this independent right before his right of residence was revoked. However, in the present circumstances, it was held that this reasonable period had expired.
Relief sought refused.
JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 18th day of April 2013.
1. This judgment concerns the interpretation of Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and...
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