Metock v Minister for Justice, Equality and Law Reform (2008) C-127/08 is a European Union law case, significant in Ireland and Denmark, on the Citizens Rights Directive and family unification rules for migrant citizens. Citizenship of the European Union was established by Article 20 of the Treaty on the Functioning of the European Union (TFEU) and the Citizenship Directive 2004/38 elaborates the right of Union citizens and their family members to move and reside freely in the territory of a member state, consolidating previous Directives dealing with the right to move and reside within the European Community (EC).
It is a logical consequence of the right to free movement that migrant citizens can move their family from one member state to another. Not to allow this would deter them from moving and thus impede their right to free movement. But it is not immediately clear that migrant citizens should have the right to bring their family into a member state when the family members are entering the European Union (EU) for the first time. The Citizenship Directive 2004/38 imposes no condition that family members can only join on first entry if they are already resident within the European Union. Nevertheless, the Irish legislation implementing the directive required the family member to demonstrate lawful residence within the European Union prior to first entry. Metock clarified that it was not lawful to maintain such a requirement. A consequence was that in some member states, such as Denmark, migrant citizens possessed more rights to family reunification than their own nationals who had not exercised their right to free movement by taking up residence in another member state.
A non-EU national is a national of a country not in the European Union. In Metock the Court ruled definitively that national rules making the right of residence of non-EU national spouses of Union citizens resident in a member state but not possessing its nationality under the Citizenship Directive 2004/38 conditional on prior lawful residence in another member state were unlawful. It also ruled against national restrictions on when and where their marriage took place and how the non-EU national entered the host member state.
Blaise Baheten Metock, a national of Cameroon, arrived in Ireland on 23 June 2006 and applied for asylum. His application was definitively refused on 28 February 2007. Hanette Eugenie Ngo Ikeng, born a national of Cameroon, acquired United Kingdom nationality. She had resided and worked in Ireland since late 2006. Metock and Ngo Ikeng met in Cameroon in 1994 and had been in a relationship since then. They had two children together, one born in 1998 and the other in 2006. They were married in Ireland on 12 October 2006. On 6 November 2006, Metock applied in Ireland for a residence card as the spouse of a Union citizen working and residing in Ireland. The application was refused by decision of the Minister for Justice on 28 June 2007, on the grounds that Metock did not satisfy the condition of prior lawful residence in another member state.
Metock, Ngo Ikeng and their children brought proceedings against that decision. They were joined by three other non-EU national applicants. Ten member states expressed an interest in the case. The Court ruled in favour of the applicants on the grounds in the first place that no provision of the Citizenship Directive 2004/38 makes its application dependent upon previous lawful residence, and secondly that European Community (and not individual member states) legislature had the competence to regulate the first entry to the European Union of family members of a Union citizen who has exercised his right to free movement, and incidentally making a brief reference to Article 8 of the European Convention on Human Rights that enshrines the right to respect for private and family life.
The decision effectively overruled an earlier case Secretary of State for the Home Department v Hacene Akrich (2003) C-109/01 that the Irish government had relied on. The Akrich case involved an individual who had entered the UK without authorisation, and was twice deported from the United Kingdom. The individual came into the country a third time without authorisation and married a British citizen. He was soon thereafter deported to Dublin, where his wife was working, where he remained for six months. Following this, he attempted to return to the United Kingdom where his wife had secured employment. In Akrich, in direct contrast to the later Metock case, the ECJ held that the initial unauthorised entrance could be used by national authorities to prevent someone from claiming European rights of establishment.
Facts Metock was a Cameroonian national married to a British national working in Ireland. Metock had sought and been refused asylum in Ireland. He and his wife had formed a family in Cameroon prior to Metock's arrival in Ireland and they had two children, one born before Metock's arrival in Ireland and the other born the same year as his arrival. Ikogho, a non-EU national, arrived in Ireland in 2004, applied for and was refused asylum, and then married a British citizen working in Ireland since 1996. Chinedu, a Nigerian national, arrived in Ireland in 2005, applied for and was refused asylum, but before the refusal married a German national working in Ireland. Igboanusi, a Nigerian national, applied for asylum in Ireland, which was refused in 2005. He married a Polish national working in Ireland in 2006, and was deported to Nigeria in December 2007.
All four men had their applications for residence cards refused on the grounds that either they did not satisfy a condition of prior lawful residence or in the case of Ikogho that they were staying illegally in Ireland at the time of their marriage. All but Metock had met their spouse after arriving in Ireland and all four were married in Ireland. Together with their spouses (and in the case of Metock their children) they brought proceedings against the decision.
The High Court of Ireland made a request for a preliminary ruling to the European Court of Justice (ECJ). The High Court affirmed that none of the marriages were marriages of convenience. In essence the High Court asked:
Does Directive 2004/38 ("the Citizenship Directive") permit a member state to maintain a prior lawful residence requirement, as did Irish legislation? Does Article 3(1) of the Citizenship Directive 2004/38 include within its scope of application a non-EU national who is a spouse of a Union citizen who resides in the host member state, and then resides in the host member state with the Union citizen as his/her spouse irrespective of when or where their marriage took place or how the non-EU national entered the host member state? If the answer to 2 was negative, whether Article 3(1) includes non-EU nationals who entered the host member state independently of their spouse and subsequently married them there.
The case was granted a rare accelerated hearing given the exceptional urgency of the circumstances with regard to both the pressure on the Irish Minister of Justice and the human rights of the applicants in regard to the right to respect for private and family life as enshrined in Article 8 of the European Convention on Human Rights. The case was thus determined after hearing the Advocate General M. Poiares Maduro but without an Opinion being submitted.
Ten member states besides Ireland were heard. These were Czech Republic, Denmark, Germany, Greece, Cyprus, Malta, the Netherlands, Austria, Finland and the United Kingdom. In addition the Commission of the European Communities was heard.
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, was 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 [50–51] 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.