Metock Case - Judgment

Judgment

The judgment established several important points:

• The right of family members to join European Union citizens is regulated only by the Citizenship Directive 2004/38. A member state may not impose any additional regulations such as previous lawful residence in a member state.

• It does not matter that the family member met and married their partner after entering the European Union.

• It does not matter if the family member had entered the European Union illegally or was living there illegally at the time of their marriage.

• Breaches of immigration policy not involving the fundamental interests of society or abuse of rights and fraud, such as marriages of convenience, may be penalised only proportionally, such as by imposing a fine, and not in a way that interferes with the family member's right to freedom of movement and residence, and this applies from the moment the family member derives his rights.

The judgment settled that the European Community (EC) and not individual member states were competent to regulate the right of entry into the European Union of non-EU family members of Union citizens who have exercised their right of free movement. Previously case-law had been unclear.

Regarding the issue of reverse discrimination arising from migrant citizens receiving more rights to family reunification than host member state nationals who have not exercised their right to free movement by taking up residence in another member state, the Court reiterated that settled case-law had established the so-called "wholly internal rule" and that the alleged discrimination thus fell outside the scope of European Community law.

The first question

On the first question regarding the condition of prior lawful residence in another member state, the Court noted in the first place that no provision of the Citizenship Directive 2004/38 makes its application conditional on prior residence in a member state. Indeed some of its provisions suggest that it is applicable to family members not already lawfully resident in another member state. Thus Article 5(2) allows entry without a residence card while Article 10(2) is an exhaustive list of documents that may need presenting, which nevertheless does not include any documents demonstrating prior lawful residence in another member state.

Accordingly the Citizenship Directive 2004/38 must be interpreted as granting rights of entry and residence to non-EU national family members of EU citizens not possessing the nationality of their host member state without distinguishing whether there had been prior lawful residence in another member state.

This interpretation was supported by the Court's earlier case-law adopted before the Citizenship Directive 2004/38. It was true that the Court had held in Akrich that prior lawful residence in another member state was a requirement but that conclusion must be reconsidered as it was incompatible with MRAX and Commission v Spain 2005 .

In the second place this interpretation was consistent with the division of competences between member states and the European Community. Community legislature was competent to enact the necessary measures to bring about freedom of movement for Union citizens. Union citizens would be discouraged from exercising their right of free movement if they could not be accompanied or joined by their family, and consequently the Community was competent to rule on the issue.

The Court rejected the argument put forward by the Irish government and several member states that member states retained exclusive competence to regulate first entry. This would lead to variation of treatment across the Community incompatible with the objective of an internal market set out in Article 3(1)(c) of the Treaty on the functioning of the European Union. Moreover it would lead to the paradoxical outcome that non-EU nationals who are long-term residents would be able to bring in their family members not lawfully resident in a member state under the Family Reunification Directive 2003/86 whereas a Union citizen in a member state whose nationality he does not possess might not.

Consequently the Citizenship Directive 2004/38 confers rights of entry and residence to non-EU national family members of EU citizens not possessing the nationality of their host member state regardless of whether there had been prior lawful residence in another member state.

Regarding the submission by the Irish government and several member states that this interpretation of the Citizenship Directive 2004/38 would undermine the ability of member states to control immigration and lead to a great increase in the number of persons able to benefit from rights of residence, the Court replied that it only applied to non-EU national family members of Union citizens who had exercised their right of free movement. Moreover member states may still refuse entry and residence in accord with Articles 27 and 35 of the Citizenship Directive 2004/38, dealing respectively with personal breaches of public policy, public health or public security and abuse of rights or fraud, such as marriages of convenience.

The same governments had also submitted that this interpretation of the Citizenship Directive 2004/38 would lead to unjustified reverse discrimination, in so far as nationals of the host member states who had never exercised their right of freedom of movement would not derive the same rights. The Court replied that it was already established case-law that the alleged discrimination fell outside the scope of European Community law, citing Flemish Insurance . Moreover member states are parties to Article 8 of the European Convention on Human Rights enshrining the right to respect for private and family life.

Finally regarding the first question, the Court ruled that it was not lawful to maintain a condition of prior lawful residence in another member state.

The second question

On the second question regarding the scope of the Citizenship Directive 2004/38, the Court noted in the first place that the Citizenship Directive 2004/38 aims to facilitate the exercise of the right of Union citizens to move and reside freely within the territory of member states and in particular recital 5 of its preamble provides that right, if it is to be exercised under objective conditions of dignity, should also be extended to family members irrespective of their nationality. The provisions of the directive must not be interpreted restrictively, as affirmed in Eind .

The directive provides family members of Union citizens the right of entry and residence without any provision requiring the Union citizen already to have founded the family when he moved to his host member state. Not to allow this right would discourage him from continuing to reside there and encourage him to leave to be able to lead a family life in another member state or in a non-member country. The Court ruled therefore that the right applied regardless of whether the Union citizen had founded his family before or after establishing himself in the host member state.

On the issue of whether a family member who has entered the host member state before becoming a family member of a Union citizen can be said to accompany or join him, the Court noted that refusing the right of entry or residence in that circumstance would be equally likely to discourage the Union citizen from remaining. To insist on a literal interpretation of 'join' or 'accompany' would be restrictive and equivalent to limiting the rights of entry and residence of the family member.

On the issue of the circumstances of the family member's entry, the Court observed that from the moment the family member derives their right of residence, a member state may only restrict that right in compliance with Articles 27 and 35 of the Citizenship Directive 2004/38, dealing respectively with personal breaches of public policy, public health or public security and abuse of rights or fraud, such as marriages of convenience. Member states are entitled to impose penalties, such as a fine, for other breaches so long as they are proportionate and do not interfere with freedom of movement and residence, as affirmed in MRAX .

On the question of where the marriage took place, the Court observed that the directive contains no requirement.

Finally regarding the second question, the Court ruled that all the circumstances fell within the scope of the Citizenship Directive 2004/38.

The third question

There was no need to answer the third question as the second question had been answered in the affirmative.