Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform.
Date: 2008-07-25
30. By application received by the Minister for Justice on 1 August 2006, Mr Chinedu applied for a residence card as the spouse of a Union citizen. The application was refused by decision of the Minister for Justice of 17 April 2007, on the ground that Mr Chinedu did not satisfy the condition of prior lawful residence in another Member State required by Regulation 3(2) of the 2006 Regulations.
52. In particular, the first subparagraph of Article 5(2) of Directive 2004/38 provides that nationals of non-member countries who are family members of a Union citizen are required to have an entry visa, unless they are in possession of the valid residence card referred to in Article 10 of that directive. In that, as follows from Articles 9(1) and 10(1) of Directive 2004/38, the residence card is the document that evidences the right of residence for more than three months in a Member State of the family members of a Union citizen who are not nationals of a Member State, the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a residence card shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State.
56. Even before the adoption of Directive 2004/38, the Community legislature recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty (Case C‑60/00 Carpenter  [2002] ECR I‑6279, paragraph 38; Case C‑459/99 MRAX  [2002] ECR I‑6591, paragraph 53; Case C‑157/03 Commission  v Spain  [2005] ECR I‑2911, paragraph 26; Case C‑503/03 Commission  v Spain  [2006] ECR I‑1097, paragraph 41; Case C‑441/02 Commission  v Germany  [2006] ECR I‑3449, paragraph 109; and Case C‑291/05 Eind  [2007] ECR I‑0000, paragraph 44).
57. To that end, the Community legislature has considerably expanded, in Regulation No 1612/68 and in the directives on freedom of movement for persons adopted before Directive 2004/38, the application of Community law on entry into and residence in the territory of the Member States to nationals of non-member countries who are spouses of nationals of Member States (see, to that effect, Case C‑503/03 Commission  v Spain , paragraph 41).
58. It is true that the Court held in paragraphs 50 and 51 of Akrich  that, in order to benefit from the rights provided for in Article 10 of Regulation No 1612/68, the national of a non-member country who is the spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated. However, that conclusion must be reconsidered. 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).
59. The same interpretation must be adopted a fortiori with respect to Directive 2004/38, which amended Regulation No 1612/68 and repealed the earlier directives on freedom of movement for persons. As is apparent from recital 3 in the preamble to Directive 2004/38, it aims in particular to ‘strengthen the right of free movement and residence of all Union citizens’, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals.
62. As already pointed out in paragraph 56 above, if Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed.
63. Consequently, within the competence conferred on it by those articles of the Treaty, the Community legislature can regulate the conditions of entry and residence of the family members of a Union citizen in the territory of the Member States, where the fact that it is impossible for the Union citizen to be accompanied or joined by his family in the host Member State would be such as to interfere with his freedom of movement by discouraging him from exercising his rights of entry into and residence in that Member State.
73. On this point, the answer must be, first, that it is not all nationals of non-member countries who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.
74. Second, Directive 2004/38 does not deprive the Member States of all possibility of controlling the entry into their territory of family members of Union citizens. Under Chapter VI of that directive, Member States may, where this is justified, refuse entry and residence on grounds of public policy, public security or public health. Such a refusal will be based on an individual examination of the particular case.
75. Moreover, in accordance with Article 35 of Directive 2004/38, Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by that directive in the case of abuse of rights or fraud, such as marriages of convenience, it being understood that any such measure must be proportionate and subject to the procedural safeguards provided for in the directive.
77. In that regard, it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all relevant respects within a single Member State (Case C‑212/06 Government of the French Community and Walloon Government  [2008] ECR I‑0000, paragraph 33).
82. It should be noted at the outset that, as may be seen from recitals 1, 4 and 11 in the preamble, Directive 2004/38 aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty.
83. Moreover, as recital 5 in the preamble to Directive 2004/38 points out, the right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of dignity, be also granted to their family members, irrespective of nationality.
84. Having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness (see, to that effect, Eind , paragraph 43).
86. Articles 6 and 7 of Directive 2004/38, relating respectively to the right of residence for up to three months and the right of residence for more than three months, likewise require that the family members of a Union citizen who are not nationals of a Member State ‘accompany’ or ‘join’ him in the host Member State in order to enjoy a right of residence there.
93. Therefore, in the light of the necessity of not interpreting the provisions of Directive 2004/38 restrictively and not depriving them of their effectiveness, the words ‘family members [of Union citizens] who accompany … them’ in Article 3(1) of that directive must be interpreted as referring both to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or before or after becoming his family members.
94. Application of Directive 2004/38 solely to the family members of a Union citizen who ‘accompany’ or ‘join’ him is thus equivalent to limiting the rights of entry and residence of family members of a Union citizen to the Member State in which that citizen resides.
95. From the time when the national of a non-member country who is a family member of a Union citizen derives rights of entry and residence in the host Member State from Directive 2004/38, that State may restrict that right only in compliance with Articles 27 and 35 of that directive.
97. However, even if the personal conduct of the person concerned does not justify the adoption of measures of public policy or public security within the meaning of Article 27 of Directive 2004/38, the Member State remains entitled to impose other penalties on him which do not interfere with freedom of movement and residence, such as a fine, provided that they are proportionate (see, to that effect, MRAX , paragraph 77 and the case-law cited).