Metock and Others v Minister for Justice, Equality and Law Reform (Case C-127/08)

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 March 2008
• Neutral Citation: [2008] IEHC 77
• Court: High Court
• Date: 14 March 2008

[2008] IEHC 77

THE HIGH COURT

[No. 1324 J.R./2007]

[No. 622 J.R./2007]

[No. 106 J.R./2007]

[No. 1620 J.R./2007]

Metock & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

BLAISE BAHETEN METOCK AND HANETTE EUGENIE NGO IKENG AND CHRISTIAN JOEL BAHETEN (A MINOR SUING BY HIS FATHER AND NEXT FRIEND) AND SAMUEL ZION IKENG BAHETEN (A MINOR SUING BY HIS FATHER AND NEXT FRIEND)

APPLICANTS [2007 No. 1324 J.R.]

AND

HENCHEAL IKOGHO DONNA IKOGHO

APPLICANTS [2007 No. 106 J.R.]

AND

ROLAND CHINEDU AND MARLENE BABUCKE CHINEDU

APPLICANTS [2007 No. 622 J.R.]

AND

HENRY IGBONANUSI AND ROKSANA BATKOWSKA

APPLICANTS [2007 No. 1620 J.R.]

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 234

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS)(NO 2) REGS 2006 SI 656/2006 ART 7

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS)(NO 2) REGS 2006 SI 656/2006 ART 3(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS)(NO 2) REGS 2006 SI 656/2006 ART 3(2)

K (S) & T (T) v MIN JUSTICE & ORS UNREP HANNA 28.5.2007 2007 IEHC 216

SECRETARY OF STATE FOR THE HOME DEPARTMENT v AKRICH (CASE NO C-109/01) 2003 ECR I-9607

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-77 ILRM 50

YUNG JIA v MIGRATIONSVERKET (CASE NO C-1/05) 2007 ECR I-00001

MINISTER VOOR VREEMDELINGENZAKEN EN INTEGRATIE v RNG EIND (CASE NO C-291/05) UNREP 11.12.2007

EEC DIR 73/148

EEC DIR 2004/38ART 27

EEC DIR 2004/38 ART 35

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 18

EEC DIR 2004/38 ART 1

EEC DIR 2004/38 ART 3

EEC DIR 2004/38ART 5

EEC DIR 2004/38ART 6

EEC DIR 2004/38ART 7(1)

EEC DIR 2004/38ART 7(2)

EEC DIR 2004/38ART 10

EEC DIR 2004/38 RECITAL 1

EEC DIR 2004/38 RECITAL 3

EEC DIR 2004/38 RECITAL 5

EEC DIR 2004/38 RECITAL 6

EEC DIR 2004/38 RECITAL 11

EEC DIR 2004/38 RECITAL 22

ASBL (MRAX) v BELGIAN STATE (CASE NO C-459/99) 2002 ECR I-6591

COMMISSION OF THE EUROPEAN COMMUNITIES v KINGDOM OF SPAIN (CASE NO C-157/03) 2005 ECR I-2911

IMMIGRATION (EUROPEAN ECONOMIC AREA) REGS 2006 SI 1003/2006 (UK)

EUROPEAN UNION

Free movement of persons

Right to move and reside freely - Citizens of European Union - Non- EU family members - Refusal of application for residence - Regulations - Requirement of lawful residence in member state prior to arrival - Whether provision requiring prior lawful residence consistent with Directive - Effect of previous decision of court of equal jurisdiction - Preliminary ruling from Court of Justice - Accelerated procedure - Matter of exceptional urgency - SK v Minister for Justice [2007] IEHC 216 (Unrep, Hanna J, 28/5/2007), Secretary of State v Akrich (Case C-109/01) [2003] ECR 1-9607, Irish Trust Bank v Central Bank of Ireland [1976-7] ILRM 50, Yunying Jia v Migrationsverket (Case C-1/05) [2007] ECR -1, Minister voor Vreemdelingenzaken en Integratie v RNG Eind (C-291/05); Movement Contre le Racisme v Belgian State (C-459/99) [2002] ECR I-6591 and Commission of the European Communities v Spain (C-157/03) [2005] ECR I-2911 considered - Directive 2004/38/EC - European Communities (Free Movement of Persons) Regulations 2006 (SI 656/2006), arts 3 and 7 - Preliminary ruling and accelerated procedure requested (2007/1324, 622, 106 & 1620JR - Finlay Geoghegan J - 14/3/2008) [2008] IEHC 77

Metock v Minister for Justice, Equality and Law Reform

Facts: This decision was given pursuant to Article 234 of the EC Treaty to seek a preliminary ruling from the Court of Justice on the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29th April, 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of Member States. In all four cases, the applicants included a married couple. In each couple, one spouse was a Union citizen of a Member State other than Ireland who was residing and working in Ireland and the other spouse was a non-EU national. All four couples were married in Ireland. The applicants challenged the validity of the decisions of the Minister to refuse the applications for residence cards.

Held by Finlay J. in making an order requesting a preliminary ruling from the Court of Justice on inter alia the following question:

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?

Reporter: R.W.

1 1. This decision is given pursuant to Article 234 of the EC Treaty to seek a preliminary ruling from the Court of Justice on the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April, 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of Member States as set out in the questions in this decision. The preliminary ruling is necessary to enable me give judgment in each of the four judicial review applications listed in the title. All were heard simultaneously and, in each, I have reserved my judgment. These applications are regarded as test cases as there are other pending applications which raise similar issues.

2 2. In all four cases, the applicants include a married couple. In one case the infant children are included among the applicants but they are not directly relevant to the questions upon which preliminary rulings are sought. In each couple, one spouse is a Union citizen of a Member State other than Ireland who is residing and working in Ireland and the other spouse is a non-EU national. All four couples were married in Ireland. Each non-EU national spouse applied for a residence card from the Minister as the spouse of a Union citizen residing and working in Ireland.

3 3. The respondent, in each of the proceedings, is the Minister for Justice, Equality and Law Reform ("the Minister") on whose behalf the challenged decisions were taken.

4 4. Three applications were refused by reason of the failure of the non-EU national to provide evidence that he had been lawfully resident in another EU Member State prior to arrival in Ireland. Such a requirement is included in the regulations made by the Minister for the purpose of giving effect to Directive 2004/38/EC in Ireland.

5 5. The applicants in each case challenge the validity of the decision of the Minister to refuse the application for a residence card. They contend that Directive 2004/38/EC does not permit Ireland include, as it has done in its implementing regulations, a requirement that a spouse of a Union citizen provide evidence of lawful residence in another EU Member State prior to arrival in Ireland. The applicants contend that such provision in the Irish regulation is invalid.

6 6. If the applicants are successful in that contention then their applications for a residence card will have to be reconsidered by the Minister. There are also further legal issues in dispute between the Minister and the applicants as to the proper meaning and scope of Directive 2004/38/EC Questions relevant to those disputes are also set out below.

7 7. I must determine each judicial review application on its own facts but there are certain common issues which require to be determined in a majority or all of the proceedings. It is convenient to give one interim decision to make a reference to the Court of Justice in all four proceedings.

Relevant background facts

8 8. There is no significant fact in dispute between the parties which is relevant to the questions on which I seek preliminary rulings from the Court of Justice. For clarity, I propose shortly setting out the family and immigration history of the applicants and the decisions taken. Not all such facts are necessarily relevant to the questions I am putting to the Court of Justice for the reasons set out below.

9 9. In proceedings [2007] No. 1324 J.R., Ms. Ngo Ikeng is now a citizen of the United Kingdom. She was a national of Cameroon and was granted a declaration of refugee status in the United Kingdom in 1999 and, subsequently, citizenship. Mr. Metock is a national of Cameroon. He arrived in Ireland on the 23 ^rd June, 2006 and made an application for asylum. That application was ultimately refused on the 28 ^th February, 2007.

10 10. Mr. Metock and Ms. Ngo Ikeng married in Ireland on the 12 ^th October, 2006. They met in Cameroon in 1994 and have been in a relationship for thirteen years. They have two children, one born in 1998 and the other in 2006, who are also applicants.

11 11. On the 6 ^th. November, 2006, Mr. Metock applied for residence in Ireland as the spouse of a Union citizen working and residing in Ireland. That application was considered by the Minister pursuant to 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.

12 12. A decision to refuse Mr. Metock's application was sent by letter of the 28 ^th June, 2007. The single reason given was:-

"The provisions of Regulation 3(2) require that in order to avail of residency rights under the Regulations, applicants must submit evidence showing lawful residence in another EU Member State prior to arrival in Ireland. Following a thorough examination of your file, it was decided that no evidence was submitted to satisfy this requirement and that therefore, residents can not be granted".

13 13. By Order of the High Court of the 15 ^th October, 2007, the applicants were given leave to apply inter alia for:-

(1) An order of certiorari quashing the decision of the...