EEA nationals family members : restrictions on entry rejected

Updated by Gherson on Thursday 28 August 2008. | | | | | | | |

In a landmark decision issued on 25 July 2008 the European Court of Justice’s Grand Chamber has found that the people married to or in a civil partnership with a citizen of the European Union (the “EU”), and who are not themselves EU citizens, must be allowed to remain in their spouse or partner’s home country.  

The rights of free movement within the European Union for the citizens of member states of the European Union and their family members are guaranteed by Directive 2004/38/EC (the “Citizens’ Directive”).   The Directive required Member States to implement domestic legislation to transpose the provisions of the Directive into the national law of each State. 

The European Court of Justice (the “ECJ”)’s ruling in Metock & others (Case C – 127/08) is in response to the Irish High Court’s reference to it.  The reference contained 3 questions:

1) does the Citizens’ Directive allow a Member State to have a general requirement that a non-EU national spouse of an EU national must have been lawfully resident in another Member State before he or she comes to the host member state so that he or she can benefit from the provisions of the Directive?

 and

2) does it matter when or where the marriage between the non – EU spouse of the EU national took place?

3) if it doesn’t matter when and where the marriage took place does that mean that the rights (of residence) provided to the non-EU national family member of an EU national extend to someone who entered the Member State independently of his or her spouse and got married to him or her in that Member State? 

The ECJ’s answers to these questions were

1) No - Member States are not allowed to do this

2) No it doesn’t matter when and where the couple got married

and

3) Yes the answer to 2) does mean that Member States have to allow someone who enters the Member State independently of his or her spouse to live in that Member State. 
 
This ruling has to be understood by reference to the facts of the cases.  Each of them involves marriages between non-EU nationals who unsuccessfully sought asylum in Ireland and EU nationals (2 UK nationals, a Polish national and a German national) who were in Ireland exercising rights of free movement.  Each of the non-EU nationals had applied for a residence card from the Irish authorities, and each had been refused because the applicants had not been lawfully resident in another EU State when they made their applications.  

It should be noted that this “prior lawful residence in another EU State” requirement is mirrored by the UK’s Immigration (European Economic Area)  Regulations 2006 at their regulation 11 (2), which requires non-EU national family members of EEA nationals to  have a family permit in order to join or accompany their EU national family member in the UK, and by regulation 12 (1) (b) (i) – the requirements for the issue of a family permit.   Basically you can’t get a family permit without being lawfully resident in an EEA State, and without a family permit you can’t enter the UK to accompany or join your EU family member. 

The requirement of prior lawful residence in the EEA Regulations has not generally been regarded by the UK courts as having been an incorrect interpretation of the rights conferred by the Citizens’ Directive.  This can be seen from the Court of Appeal’s judgment in KG (Sri Lanka) and AK (Sri Lanka) v Secretary of State [2008] EWCA Civ 13, in which Buxton LJ stated:

“There would, therefore, be nothing surprising if the right of residence of the Union citizen under Directive 2004/38 also did not generate rights of initial entry into the territory of the Community for his spouse, and much less for his OFM [Buxton LJ was here referring to “other family members – his expression for the “extended family members” of EEA nationals which are the subject of separate provisions from those covering “family members” in both the EEA Regulations and the Directive] . And, further, rights of residence created by Directive 2004/38 are expressed as linked to, and in the structure of chapters II and III of Directive 2004/38 are seen as naturally following upon, rights of entry in exercise of the right of free movement. That free movement is described by recital (2) to Directive 2004/38 as a freedom of the internal market, thus assuming movement from one member state to another.”

The reasoning of the Court of Appeal in KG relied upon the ECJ’s judgment in C‑109/01 Akrich [2003] ECR I‑9607.  In Metock the ECJ indicated that its judgment in that case was incorrect, referring to its incompatibility with the two cases brought to the Court of Appeal’s attention in KG:

“The benefit of such rights cannot depend on the prior lawful residence of such a spouse in another Member State (see, to that effect, MRAX, paragraph 59, and Case C‑157/03 Commission v Spain, paragraph 28).”

This case has sent reverberations throughout the European Union.  The UK Borders Agency issued the following comment upon it:

“The decision goes against the spirit of the directive which is about free movement for EU nationals and we were one of 10 member States supporting the Irish position.  All member states will be carefully considering the judgment and its implications.”

Due not least to the need for national legislation to be compatible with the EU Directive which it is passed to implement - applications based on rights enjoyed by EEA nationals and their families can appear to be notoriously complicated.  Anyone needing to make such an application is advised to seek professional legal advice.