Raducan v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 03 June 2011
• Neutral Citation: [2011] IEHC 224
• Docket Number: [No. 1398JR/2010]
• Court: High Court
• Date: 03 June 2011

Raducan v Min for Justice & Ors

BETWEEN/

RADU RADUCAN AND AURELIA RADUCAN

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2011] IEHC 224

[No. 1398JR/2010]

THE HIGH COURT

1 1. The applicants are a couple who were married on 20 ^th March, 2007, in Purcari, Moldova. Ms. Raducan is Moldovan and Mr. Raducan is Romanian. They originally travelled to Ireland in April, 2007. At that time, Ms. Raducan, who holds a Moldovan passport, stood possessed of an Irish visa. It is common case that Ms. Raducan overstayed her visa at that time, but nothing greatly turns on this, since it is also accepted that, as the spouse of an EU citizen, she a perfect entitlement in principle to enter this State.

2 2. The couple left Ireland in July, 2010 and returned to Romania. It would appear that when they were there they went to some trouble to ensure that their married status - and, hence, Ms. Raducan's entitlement to accompany her spouse - would be vouchsafed. To that end, the applicants obtained a formal marriage certificate which was issued by the Romanian Embassy in Chisnau, Moldova on 1 ^st October, 2009. The certificate was in three languages, Romanian, French and English. A Hague Convention apostille - which is effectively the equivalent in international law of the notarisation of a document for domestic law purposes - was issued in respect of that marriage certificate in April, 2010.

3 3. In addition to the marriage certificate (and the apostille attached to it), the applicants were also in possession of a plastic identity card in the style of a credit card which was entitled "residence card for family members." The card had been issued on 28 ^th September, 2010. It displayed Ms. Raducan's photograph and gave other relevant details in Romanian, French and English. It is not in dispute but that this card was a valid "Residence card of a family member of a Union citizen" for the purposes of Article 10(1) of Directive 2004/38/EC ("the 2004 Directive").

4 4. The applicants arrived at Dublin airport on Friday, 29 ^th October, 2010, on a a flight from Bucharest with a one-way ticket. While there is a conflict of fact as to what exactly happened following the presentation of their passports to the immigration authorities, there are other key facts which are not in dispute. It is agreed that Moldova is not visa exempt and that Ms. Raducan did not have an Irish visa which she was otherwise required to possess. It is equally agreed, however, that Ms. Raducan would have been entitled to admission into the State as of right on presentation of the family residence card in accordance with Article 5(2) of the 2004 Directive. This provides:-

"For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement."

5 5. What is in dispute is not only whether Ms. Raducan actually produced the card (or, for that matter, the marriage certificate) to the immigration authorities, but also whether the State duly complied with its obligations under Article 5(2) and Article 5(4) of the Directive. This latter provision is in the following terms:-

"Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence."

6 6. Before examining this point further, it may be convenient here to summarise the oral evidence given by the three witnesses.

The evidence

7 7. Ms. Raducan gave evidence with the benefit of an interpreter. She said that when she approached the immigration booth, she presented her Moldovan passport, her husband's Romanian passport and the family residence card to Garda McCormack, who was the immigration officer on duty. Ms. Raducan maintained that Garda McCormack took the two passports and put the card to one side. According to her, Garda McCormack insisted that she needed a visa and stated that the family residence card was not valid in Ireland. Ms. Raducan insisted that at that point she then produced her marriage certificate from her purse in order to show that she was married, but that Garda McCormack was only interested in the production of a visa.

8 8. It is not in dispute but that shortly afterwards Ms. Raducan was arrested by Garda McCormack pursuant to s. 5(2) of the Immigration Act 2003, and brought to the Dóchas Centre where she was to be detained pending her removal from the State to Bucharest on Tuesday, 2 ^nd November, 2010. Mr. Raducan was permitted to enter the State. As it happens, an application was made to this Court on Saturday 30 ^th October for an inquiry into the legality of Ms. Raducan's detention pursuant to Article 40.4.2 of the Constitution. Kelly J. directed such an inquiry and the applicant was released on Monday, 2 ^nd November, 2010.

9 9. Returning now to the oral evidence, Garda McCormack agreed that there were communications difficulties with the applicants. When she asked Ms. Raducan why she did not have an Irish visa, the latter claimed that she was married. Garda McCormack said that she then asked Ms. Raducan to produce her marriage certificate, but it was never produced. She also noted that the couple had only one way tickets, that Ms. Raducan had previously overstayed her visa and that vague and contradictory explanation were given in respect of the anticipated length of their stay. Garda McCormack was emphatic that neither the marriage certificate nor the family residence card had not been produced to her. While the immigration authorities had a contact in the Romanian Embassy whom they could ring with regard to problem cases, she did not think that it was necessary to do so in the present case. Garda McCormack then made an order under s. 5(2)(a) of the Immigration Act 2003 providing for the detention of the applicant pending the making of arrangements for her removal from the State.

10 10. Under cross-examination Garda McCormack agreed that she had not asked Ms. Raducan whether she was married, but stressed that no marriage certificate or family residence card had been produced. She was not familiar with the family residence card and had never encountered such a card before it was produced in evidence. She had checked the status of the applicants on the Garda information system and she noted that Ms. Raducan had previously overstayed in Ireland once her visa had expired. While she agreed that interpreters were often used over the phone, she had not used this facility in the present case.

11 11. Garda McCormack's immediate supervisor, Sergeant Biggins, also gave evidence. He said that he had only seen the passports and that no other documents had been produced. He had not seen any marriage certificate which he maintained was the standard document to be produced in such cases. He had not seen any family residence cards and, indeed, he was not even aware of the existence of such cards prior to this litigation. He confirmed that there was no procedure to grant a visa to third country nationals at the airport.

12 12. Under cross-examination Sergeant Biggins emphasised that following Ms. Raducan's detention it was up to the applicant's legal advisers to produce the necessary documentation and that it was not for him to be proactive in this matter. He again emphasised that he had not seen the marriage certificate or the residence card. He further suggested that if the applicant had genuinely been in possession of such...