S.K. & T.T. v Minister for Justice, Equality and Law Reform and Others
|Mr. Justice Hanna
|28 May 2007
| IEHC 216
|28 May 2007
|[No 758 JR/2006]
 IEHC 216
THE HIGH COURT
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
EEC REG 343/2003 ART 16(1)(e)
REFUGEE ACT 1996 S22
REFUGEE ACT 1996 (S22 ) ORDER 2003 SI 423/2003 ART 7(9)
EEC REG 1612/1968 ART 1(1)
EEC DIR 2004/38 ART 3
EUROPEAN COMMUNITIES ACT 1972 S3
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 3(1)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 3(2)
CONSTITUTION ART 15.2
CONSTITUTION ART 29.4.10
EUROPEAN COMMUNITIES ACT 1972 S2
MEAGHER v MIN AGRICULTURE & FOOD 1993 9 2468
SECRETARY OF STATE FOR THE HOME DEPARTMENT v AKRICH C/109/01 TLR 26.9.2003
YUNYING JIA v MIGRATIONSVERKET C 1/05
GASHI v MIN FOR JUSTICE & ORS UNREP CLARKE 3.12.2004 2004/19/4277
R (MAHMOOD) v HOME SECRETARY 2001 1 WLR 840
BOULTIF v SWITZERLAND 2001 33 EHRR 1179
YILDIZ v AUSTRIA 2003 36 EHRR 553
DUBLIN II REG 2003 ART 3(2)
Freedom of movement for persons
Rights of entry and residence - Directive providing for rights of union citizens and their family members who are not nationals of member state to move and reside freely within territory of member states - Rights of residence in member state of spouse who not national of member state - Application by non European national spouse for residence in member state on basis of marriage to union citizen working within state - Whether applicant lawfully resident with spouse in another member state prior to move to host state - Whether first applicant came within intended scope of directive - Whether regulations ultra vires -Secretary of State for Home Department v Hacene Akrich (Case C-109/01)  ECR I-9607 applied; Yunying Jia v Migrationsverket (Case C-1/05) (Unrep, ECJ, 27/4/2007) distinguished; Gashi v Minister for Justice  IEHC 394, (Unrep, Clarke J, 3/12/2004) and R (Mahmood) v Home Secretary  1 WLR 840 approved - European Communities (Freedom of Movement of Persons) Regulations 2006 (SI 226/2006) - Council Directive 2004/38/EC, arts 2 and 3 - Application dismissed (2006/758JR - Hanna J - 28/5/2007)  IEHC 216
K(S) & T(T) v Minister for Justice
This is an application for judicial review on behalf of the applicants to whom leave to bring this application was granted in the form of the amended statement of grounds. The said leave was obtained from Finlay Geoghegan J. on the 31st July, 2006.
The first named applicant claims that he has a right of residency in this Jurisdiction, being married to an EU citizen who is resident and working in Ireland. The applicants complain that the instrument under which the first named applicant's right of residency was refused, The European Communities (Freedom of Movement of Persons) Regulations 2006, S.I. No. 226/2006, isultra vires Directive 2004/38/EC which deals with the rights of citizens of the European Union and their family members to move and reside freely within the territory of the Member States. Specifically, the applicants contend that the requirement in the said Regulations, that a spouse or family member who is a national of a non-EU state be lawfully resident in another Member State before entering Ireland either with or without a view to joining a spouse who is a national of another EU state, goes beyond the provisions of the Directive to such extent as would require primary legislation to be enacted into law. Further, the applicants argue, in the given circumstances of S.K.'s case, refusal of the right of residency and his removal from the State to the Kingdom of Belgium is contrary both to their respective rights under the Irish Constitution and under the European Convention of Human Rights and Article 8 thereof in particular.
The first named applicant is a citizen of India. The second named applicant is a national of Estonia, a Member State of the European Union. The applicants were married in this State on 18th May, 2006, having been in a relationship, according to the applicants, since 2003. Unsurprisingly, the description of the applicants' prior relationship is not challenged since it occurred mostly out of the jurisdiction. Further, no issue has been raised with regard to the validity in legal terms of the marriage.
The relevant history of the case is as follows. Whilst still a minor aged fifteen, the first named applicant applied for asylum in Belgium and was refused. He then somehow or other entered the United Kingdom and resided there illegally for a period of approximately three years. It was during this time, we are told, that the relationship between the applicants grew. According to applicants' solicitor, Mr. Derek Stewart, who swore an affidavit on behalf of and on the instructions of the applicants, the applicants formed an intention to marry when in the United Kingdom and he was instructed that some contact was made with the Home Office in the UK on their behalf, seeking permission for their marriage. Mr. Stewart in para. 6 of his affidavit sworn on 27th June, 2006, says as follows:-
"It seems that in frustration with the length of time it was taking to regularise their position and formalise their marriage, the applicants travelled to Ireland in or about January, 2006, with the intention of the second named applicant finding employment in the State, formalising their marriage and setting up their family home here."
What the difficulties and delays were in the United Kingdom are not specified. Nor is any single item of correspondence to or from the British Home Office exhibited. Nor is there any evidence that the frustration which they felt caused them to visit a solicitor to enquire as to the reason for the alleged delay and possible steps to do something about it.
In any event, the applicants then entered this State, set up home here and an asylum application was made by the first named applicant on 15th February, 2006. I should observe at this point (and I will return to it later) that, in his application for asylum, he made no reference to his unsuccessful application for asylum in Belgium or the fact that he was illegally resident in the United Kingdom for a period of three years prior to coming to this State.
Upon applying for asylum in this jurisdiction, he was given an information leaflet which advised him,inter alia, that he could make written representations to the Refugee Applications Commissioner. This particular leaflet was a leaflet presented to applicants for such status, informing them of their various rights. It is not in issue that the applicant was aware that he could have his case examined did he wish to do so.
Thereafter, the applicants say that they set up home together and the second applicant secured employment at a service station in the midlands prior to their marriage on 18th May, 2006.
This, according to the respondents, was part of the applicants' overall plan to circumvent the immigration laws of this State. The first named applicant was a person who would in ordinary circumstances require a valid visa to enter the State. It was the applicants' intention and understanding that their marriage would obviate the need for an asylum application because the first named applicant would then have the status of a spouse from a non-Member State of a national of a Member State of the EU and would thus be entitled to residency in Ireland.
In the meantime, the first named applicant's fingerprints, which had been taken when he arrived in this country, were checked by means of a Eurodac search and this revealed that the first named applicant had previously applied for asylum in Belgium. The Irish immigration authorities then made a take back request to Belgium on 21nd May, 2006. A letter from the Belgian authorities dated 31st May, 2006, indicated that the Belgian authorities were agreeable to taking the first named applicant back, pursuant to Article 16(1)(e) of the Council Regulation (EEC) No. 343/2003. This Article provides that:-
"The Member State responsible for examining an application for asylum under this Regulation shall be obliged to: … take back … a third country national whose application it has rejected and who is in the territory of another Member State without permission."
Mr. Stewart tells us that the applicants proceeded to lodge papers with the first named respondent, for the purpose of mounting an application for residency on the basis of their marriage and the fact that the second named applicant was an EU national who was employed in the State. The applicants instructed Mr. Stewart that their original marriage certificate, original birth certificates with translations, a copy extract from the first named applicant's passport and a copy of the second named applicant's passport were delivered by hand to the first named respondent's offices at 13-14 Burgh Quay, Dublin 2, in early June, 2006.
By letter of 2nd June, 2006, the first named applicant was advised that the office of the Refugee Applications Commissioner had determined that Belgium was the country responsible for dealing with his application for asylum pursuant to the provisions of the Dublin Convention known as "Dublin II". Article 8 of that Convention provides that:
"Where no Member State responsible for examining the application can be designated on the basis of the other criteria listed in this Convention, the first Member...
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