Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ilešič
• ECLI: ECLI:EU:C:2008:335
• Docket Number: C-127/08
• Date: 11 June 2008
• Procedure Type: Reference for a preliminary ruling

VIEW OF ADVOCATE GENERAL

POIARES MADURO

of 11 June 2008 ¹(1)

Case C‑127/08

Blaise Baheten Metock,

Hanette Eugenie Ngo Ikeng,

Christian Joel Baheten,

Samuel Zion Ikeng Baheten,

Hencheal Ikogho,

Donna Ikogho,

Roland Chinedu,

Marlene Babucke Chinedu,

Henry Igboanusi,

Roksana Batkowska

v

Minister for Justice, Equality and Law Reform

(Reference for a preliminary ruling from the High Court (Ireland))

(Right of Union citizens to move and reside within the territory of a Member State – Spouse who is a national of a non-member country)

1. The present reference, which is being dealt with under the accelerated procedure provided for in Article 104a of the Court’s Rules of Procedure, concerns the scope of the right of residence of nationals of non-member countries who are family members of a Union citizen. The issue is a sensitive one because it involves drawing a dividing line between what is covered by the provisions on Union citizens’ freedom of movement and residence and what comes under immigration control, a matter over which the Member States retain competence in so far as and to the extent that the European Community has not brought about complete harmonisation. The constitutional significance of the subject explains the liveliness of the debate, with no less than 10 Member States intervening in support of the respondent in the main proceedings to challenge the interpretation put forward by the applicants in the main proceedings and the Commission of the European Communities. It is also true that the positions adopted previously by the Court have helped fuel the debate since there does not appear to be clear consistency in the line taken in case-law. The questions on the interpretation of Directive 2004/38/EC (2) which have been referred in the present cases thus provide the Court with a good opportunity to clarify this matter.

I – The facts in the main proceedings and the questions referred

2. The present reference for a preliminary ruling was made by the High Court (Ireland) in the course of proceedings on four applications for judicial review of the refusal to grant a residence card to a national of a non-member country married to a Union citizen established in Ireland. In each of the four cases a national of a non-member country entered Ireland directly and made an application for asylum which was refused. Following his arrival in Ireland, the applicant married a national of another Member State who was established and working in Ireland. Following the marriage he applied for a residence card as the spouse of a national of a Member State lawfully resident in Ireland. The applicant was refused such a card by the Minister for Justice on the ground that he was unable to provide evidence that he had been lawfully resident in another Member State prior to arrival in Ireland, as required by the Irish regulations adopted to transpose Directive 2004/38. The applicants therefore challenged those ministerial decisions to refuse them residence cards, claiming that the condition of prior lawful residence in another Member State imposed by the Irish legislation, non-compliance with which was the reason for the contested refusals, is contrary to Directive 2004/38.

3. Therefore, in order to be able to examine the merits of the proceedings brought against the refusals to grant residence cards, the referring court considers that it is necessary essentially to ask the Court of Justice whether the benefit of the provisions of Directive 2004/38, or more specifically of the right of residence for the non-EU national spouse of a Union citizen, can be subject to the condition that he must have been lawfully resident in another Member State before coming to the host Member State. This forms the subject of the first question referred. Even if the answer were no, it would remain to be determined whether the nationals of non-member countries could, in the present case, nevertheless be refused the benefit of the provisions of Directive 2004/38, since Article 3(1) thereof reserves the right to rely on its provisions to family members who ‘accompany’ or ‘join’ a Union citizen, and the nationals in question did not marry until after they arrived in Ireland. Hence the second and third questions referred which essentially concern the effect of the date of the marriage on the applicability of Directive 2004/38. I will examine these two points in turn.

II – Assessment

A – Compatibility of the requirement of prior lawful residence in another Member State with Directive 2004/38

4. The question whether Directive 2004/38 permits the benefit of the right of residence which it grants to non-EU nationals who are the family members of a Union citizen to be subject in the host Member State to the condition that they must have previously been lawfully resident in another Member State requires consideration of the scope of application of that legislation: does it apply only to families which were established in a Member State before moving to the host Member State? In other words, does Directive 2004/38 guarantee for non-EU nationals who are family members of a Union citizen only freedom of movement within the territory of the Union or also, in certain cases, access for them to the territory of the Union?

5. Directive 2004/38 does not provide an explicit answer. It merely confers, in Articles 6, 7 and 16 thereof, a right of residence on a Union citizen’s family members who are not nationals of a Member State, ‘accompanying or joining the Union citizen’. Since an analysis of the text provides no assistance, it is necessary to refer to its objectives. Directive 2004/38 seeks to guarantee the ‘primary and individual right to move and reside freely within the territory of the Member States’ conferred on Union citizens directly by Article 18 EC. (3) It is therefore in the light of the fundamental right of Union citizens to move and reside that the provisions of that directive must be interpreted. The rights that it provides for must be understood in functional terms in such a way that they are given the full scope necessary to ensure the effectiveness of Union citizens’ right to move and reside, but no more. In other words, it is a question of determining whether full and complete enjoyment by a Union citizen of his right of residence means that the right of residence of non-EU national members of a Union citizen’s family, which is a right consequential to and dependent on that of the Union citizen, (4) includes a right to enter the territory of the Union.

6. The intervening Member States cannot validly invoke against this approach, and the response which may result from it, the vertical constitutional division of competences. Although it is true that in principle the Member States remain competent for immigration control, and thus the admission of nationals of non-member countries from outside the territory of the Community, it cannot consequently be deduced that Directive 2004/38 relates only to the movement between Member States of Union citizens and their family members and not to the access of those family members to the territory of the Union. It is established case-law that the Member States must exercise their national competences consistently with Community law and, in particular, the fundamental freedoms of movement. (5) It has thus been expressly ruled that requirements relating to compliance with Union citizens’ right to freedom of movement and residence could constrain the Member States’ exercise of their powers, (6) in particular those which they have in relation to immigration control. (7)

7. In order to contest the applicability of Directive 2004/38 to the entry of non-EU national members of the family of a Union citizen into the territory of the Community, it is equally not possible to refer legitimately to the organisation of Community powers under the various legal bases provided for in the EC Treaty. Admittedly, only Title IV of the EC Treaty permits the adoption of Community legislation on immigration and external border controls, (8) whilst Directive 2004/38 is based on Title III of the EC Treaty. However, the directive directly governs only the rights of Union citizens, and those of their family members are covered only in so far as they are accessories to the former rights. The fact that the directive may thereby have an effect on immigration control does not encroach upon the power under Title IV since its main purpose is merely to guarantee the exercise of the right of Union citizens to move and reside.

8. It therefore remains to determine whether the full effect of the rights attached to Union citizenship means that the right of residence conferred on the family members of a Union citizen by Directive 2004/38 may, under certain circumstances, include a right of access to Community territory. To that end it is firstly necessary to point out the repeated emphasis which both the legislature (9) and the Court (10) place on the importance of protecting the family lives of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty. This connection of purpose established...