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Right of Residence, Free Movement of Persons, Non-EU Spouses: Case C-127/08

By Bartolus

How could this have happened ? We're kind of embarrassed..... Here's a major case dealing with the free movement of persons in which the Court of Justice overruled itself and handed down a judgment that's very "citizen friendly". And we did not blog about it !

The case is C-127/08 Metock and Others v Minister for Justice, Equality and Law Reform and the judgment was handed down on July 25th 2008.

Here's the story (of the case, not how we managed to overlook it). The case came to the Court of Justice on a reference from the Irish High Court. There were four cases before the Irish court concerning a non-EU member State national who arrived in Ireland and applied for asylum. In each case the application was refused. While resident in Ireland the four asylum seekers married citizens of the Union who did not have Irish nationality but who were resident in Ireland. None of the marriages was a marriage of convenience. After the marriage, each of the non-EU spouses (the asylum seekers) applied for a residence permit as the spouse of a EU citizen. The applications were refused by the Minister for Justice on the ground that the spouse did not satisfy the condition of prior lawful residence in another Member State.

The reason why the residence permits were refused is the following. Directive 2004/38 - which we have commented on before here and here - provides that all citizens have the right to move and reside in the territory of another member State as workers or students or if they have comprehensive sickness insurance and sufficient funds not to become a burden on the social assistance system. The family members of a citizen of the EU have the right to move and reside in the Member States with that citizen. They can enter a member State if they have an entry visa or residence card issued by a member State.

The Irish legislation implementing Directive 2004/38 in Ireland provides that a citizen of an EU country who is a family member of an EU citizen may reside with or join that citizen in Ireland only if he is already lawfully resident in another member State. And that was not the case for the applicants in Case C-127/08.

Consequently, the Irish High Court asked the Court of Justice whether the condition of prior lawful residence in another Member State is compatible with the terms of Directive 2004/38.

The Court of Justice held - to the surprise of many - that the condition of prior lawful residence was not compatible with Directive 2004/38. It held that the application of the directive is not conditional on family members having previously resided in a member State. The directive applies to all EU citizens who move to or reside in a member State other than that of which they are a national, and to their family members who accompany them or join them in that Member State. The definition of family members in the directive does not distinguish according to whether or not they have already resided lawfully in another member State.

The Court examines its previous case law and expressly overrules its judgment in Case C-109/01 Akrich (which it had previously tried to confine to its facts in Case C-1/05 Yungying Jia). In Case C-109/01 Akrich the Court had upheld the condition of prior lawful residence in another EU state.

It is really quite rare for the Court of Justice to overrule itself.

Full post as published by EU Law Blog on March 28, 2009 (boomark / email).