Conformity Study for Ireland

Directive 2004/38/EC on the right of citizens of the Union and their

family members to move and reside freely within the territory of the
Member States
 This National Conformity Study has been prepared by Milieu Ltd. in consortium with the
Europa Institute, Edinburgh University under Contract No JLS/2007/C4/004-30-CE-
0159638/00-31. The actual conformity checking was carried out in Ireland by Oran Doyle and
was concluded on 1 August. The study does not take into account any subsequent changes in
EU law and national legislation and/or administrative practice.

The views expressed herein are those of the consultants alone and do not necessarily represent
the official views of the European Commission. The national report reflects that legal
situation as it stands on 1 August 2008. No subsequent changes have been taken into account.

Milieu Ltd. (Belgium), 29 rue des Pierres, B-1000 Brussels, tel: 32 2 506 1000; Fax 32 2 514
3603; e-mail: [Link]@[Link]; web address: [Link]

ANALYSIS OF THE LEGISLATION TRANSPOSING

DIRECTIVE 2004/38/EC ON FREE MOVEMENT OF UNION CITIZENS

TABLE OF CONTENTS

EXECUTIVE SUMMARY ......................................................................................................................... 6

SUMMARY DATASHEET ........................................................................................................................ 6

ABBREVIATIONS USED ....................................................................................................................... 16

1 INTRODUCTION ......................................................................................................................... 18
1.1 OVERVIEW OF THE LEGAL FRAMEWORK IN IRELAND................................................................ 19
1.2 FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC IN
IRELAND .......................................................................................................................................... 19
1.2.1 Distribution of competences according to the national Constitution ................................19
1.2.2 General description of organisation of national authorities implementing Directive
2004/38/EC Ireland ........................................................................................................................20

2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE 2004/38/EC................. 20

2.1 Definitions, family members and beneficiaries........................................................................... 21
2.2 Rights of exit and entry ................................................................................................................... 25
2.3 Right of residence ........................................................................................................................... 26
2.4 Right of permanent residence ...................................................................................................... 32
2.5 Common provisions ........................................................................................................................ 35
2.6 Restrictions on the right of entry and residence on grounds of public policy, public security
and public health............................................................................................................................ 38
2.7 Procedural safeguards against decisions restricting free movement .................................... 41
2.8 Final provisions ................................................................................................................................. 44

ANNEX I: Table of concordance for Directive 2004/38/EC

ANNEX II: List of relevant national legislation and administrative acts
ANNEX III: Selected national case law
ANNEX IV: Application forms

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EXECUTIVE SUMMARY

1. Introduction

Ireland is a unitary State. The 1937 Constitution establishes a system of government along the lines of
the Westminster model, but with two important differences. First, the Constitution recognises a
number of constitutional rights. The legislature and executive must act in accordance with the
Constitution as interpreted by the courts. Secondly, the Constitution can only be amended by the
people in referendum. The people, not Parliament, are sovereign.

2. Introduction to the main particularities of the legal system of the Member State relating to
the transposition of Directive 2004/38/EC.

Directive 2004/38/EC has been implemented in Ireland by SI 226/2006 European Communities (Free
Movement of Persons) Regulations 2006. This is secondary legislation made by the Minister for
Justice under the authority granted by the European Communities Act 1972. SI 226/2006 was revoked
by SI 656/2006 European Communities (Free Movement of Persons) (No 2) Regulations 2006. These
latter regulations repeated all the provisions of SI 226/2006 subject to (a) one change to deal with the
position of nationals of Bulgaria and Romania; (b) some minor changes concerning numbering; (c) the
addition of one further piece of required information in one of the forms required by the regulations. It
is likely that the Irish courts will accept this method of implementation as acceptable: by and large SI
656/2006 does not deal with new matters of principle and policy that are not addressed by the
Directive. For the most part, SI 656/2006 fills in matters of detail. (There are, however, several
instances of incorrect and inadequate transposition that will be addressed below.)

The Minister for Justice is the member of the Government (Cabinet) with responsibility for
immigration. As well as making the regulations, the Minister is also the recipient of most of the
powers granted under the regulations. It is he who has most of the responsibility for taking decisions
under the regulations. Although the Minister for Justice is assigned many powers under SI 656/2006, it
is not the Minister in person who will exercise these powers. Under Irish administrative law, it is
permissible for a Government Minister to delegate a power to a person within their department.
Accordingly, decisions under the regulations will in fact be made by civil servants working within the
Department of Justice, Equality and Law Reform. It is unclear from the regulations how senior these
civil servants must be. However, the review provisions in regulation 21 provide that any review of a
decision made under the regulations must be undertaken by a person of a senior grade to the official
who made the initial decision.

Given the unitary character of the Irish State and the approach taken in the regulations, there is very
little potential for conflict of responsibilities in the implementation of the Directive. The Minister for
Justice is in almost complete control of all relevant legal and administrative provisions for
implementing the Directive.

3. Conclusions of the legal analysis of the transposing measures for Directive 2004/38/EC.

As noted above, Directive 2004/38EC has been transposed into Irish law by means of secondary
legislation made by the Minister for Justice. The transposing instrument is SI 656/2006 European
Communities (Free Movement of Persons) Regulations 2006. While these Regulations are largely
faithful to the Directive, there are a significant number of respects in which the Regulations have not
been transposed properly.

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The Table of Correspondence and the Conformity Study below both set out in detail and in full the
respects in which the Directive has not been properly transposed. For the purposes of this executive
summary, the more important issues are summarised.

• Incomplete Transposition

Article 14 of the Directive provides a number of important protections from expulsion orders. For
instance, an expulsion order cannot be the automatic consequence of recourse to the social welfare
system; workers, self-employed people and job-seekers cannot be expelled. None of these protections
has been transposed by the Irish Regulations. While Ireland may not in practice make any such
expulsions, it is regrettable that these provisions have not been transposed.

Most seriously in terms of omissions, the various procedural safeguards envisaged by Articles 15, 30
and 31 of the Directive have not been transposed. These three articles envisage certain procedural
guarantees that apply when decisions are taken to restrict the free movement of EU citizens and their
family members. Article 15 makes reference to the procedural guarantees actually contained in
Articles 30 and 31. Some of these procedural guarantees have been transposed, but there are concerns
over the following.

Article 30.1 provides that persons concerned shall be notified in writing of any decision in such a way
that they are able to comprehend its content and the implications for them. Article 30(1) is transposed
by regulation 20(3)(b), such that where the Minister decides to make a removal order, she must notify
the person in writing where necessary and if possible in a language that the person understands. There
are several concerns over this. First, the obligation to have the notification in a language which the
person understands is limited to where this is “necessary and possible”. In practice, it seems that
people can only apply in English and that all notifications are issued in English. Second, no attempt is
made to apply this requirement to the other decisions under the regulations (apart from removal
orders), as required by Article 15.

Article 30(2) requires that the persons concerned be informed “precisely and in full” of the public
policy, security or health grounds on which the decision is taken. Regulation 20(3)(b) does impose an
obligation on the Minister to state the reasons for the decision. However, case law in Ireland on a duty
to state reasons is generally very weak. In Grealish v. An Bord Pleanála [2006] IEHC 310, O’Neill J
characterised the legal obligation on An Bord Pleanála (the planning appeals board) to state the “main
reasons and considerations” for its decision as “a very light one, one could even say almost minimal”.
This is clearly very different from an obligation to state reasons “precisely and in full”. It is not
necessarily the case that the Irish courts would carry over the jurisprudence from planning law to this
situation. However, given the way in which the courts have generally approached the duty on
administrative bodies to give reasons, Article 30(2) of the Directive should have been explicitly
transposed.

Article 30(3) requires that the notification shall specify the court or administrative authority with
which the person concerned may lodge an appeal and the time limit for the appeal. Neither of these
requirements is transposed, either as regards removal decisions or the other decisions under the
regulations.

Article 31(3) requires that the redress procedures shall allow for an examination of the legality of the
decision as well as of the facts and circumstances on which the proposed measure is based. As Article
31(1) refers to judicial and, where appropriate, administrative redress procedures, it seems to follow
that both the administrative redress procedures and the judicial redress procedures must be able to
undertake an examination of the facts and circumstances on which the proposed measure is based. The
problem with transposition in this regard is that Irish administrative law – in general – does not allow
the courts under judicial review to examine the factual basis for a decision. Administrative decisions
can only be struck down by the courts – on a factual basis – where there was no material before the
decision-maker to support the decision. There is thus no examination of the material that was before
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the decision-maker. This is not consistent with the sort of factual review that Article 31(3) requires.
Given the restrictive position generally adopted by Irish law on this issue, the regulations should have
explicitly granted the Irish courts a wider jurisdiction to review the facts than the courts have generally
claimed for themselves.

• Incorrect transposition

The most serious aspect of incorrect transposition relates to the requirement, imposed by regulation
3(2) of the Irish Regulations, that the EU citizen and her family member must have been lawfully
resident in another Member State prior to coming to Ireland. The ECJ’s jurisprudence on this issue
clearly states in Metock (see below) that a lawful residence requirement is not permitted by the
Directive. The application of regulation 3(2) by the Irish authorities had led to 100s of cases being
brought to the High Court. Challenges to immigration decisions are taken to the High Court by way of
judicial review. For administrative reasons – and given the volume of cases – the High Court had
arranged a special list for dealing with immigration cases. This list is managed by Mrs Justice Finlay
Geoghegan. She divided the lawful residence cases into five categories of case to facilitate their
management and to allow issues be resolved by test cases:

1. A non-EU national family member enters the State with an EU-national, but coming from
outside the EU.
2. A non-EU national is lawfully resident in the State (on a work permit) and marries an EU
national in the State.
3. A non-EU national is lawfully resident in the State (on a student visa) and marries an EU
national in the State.
4. A non-EU national seeks asylum in the State and, while in the asylum process, marries an EU
national.
5. A non-EU national is in the State illegally (for instance while awaiting deportation having
failed to obtain refugee status) and marries an EU national.

In each of these situations, the non-EU national although now a family member does not meet the
requirement in regulation 3(2) that they have been lawfully resident in another EU Member State
when they sought to enter the State in the company of an EU citizen or sought to join the EU citizen in
the State. There may be other problems in relation to categories 2-5. It is not clear that such persons
are “accompanying” or “joining” their EU citizen family member, irrespective of any lawful residence
requirement. However, these cases are not being refused on this basis.

Many applications were refused under each of these five headings. However, the State settled the
cases of persons falling in categories 1-3 on the basis that the persons would be entitled to have their
applications reconsidered under the Directive (by implication without reference to a lawful residence
requirement). Cases under categories 4 and 5 were not settled. Finlay Geoghegan J referred a number
of questions for the European Court of Justice in a number of representative cases. A number of
people in categories 1-3 have had their applications refused again. The reasoning of the Court of
Justice in Metock (see below) applies to these cases also and a different approach will now be required
from the Minister for Justice in relation to these cases.

In another case, another High Court judge applied the lawful residence requirement. In SK v Minister
for Justice Equality and Law Reform [2007] IEHC 216, Hanna J refused an application for a judicial
review of the Minister’s decision to refuse a residency application to a spouse of an EU citizen. Hanna
J held that the application was correctly refused, because of regulation 3(2), and held that regulation
3(2) properly transposed the Directive.

The lawful residence requirement is by far the biggest issue that arises in relation to the Irish
Regulations. This issue has now been decisively resolved by the recent judgment of the European
Court of Justice in Case C-127/08 Metock:

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 “The answer to the first question must therefore be that Directive 2004/38 precludes legislation of
a Member State which requires a national of a non-member country who is the spouse of a Union
citizen residing in that Member State but not possessing its nationality to have previously been
lawfully resident in another Member State before arriving in the host Member State, in order to
benefit from the provisions of that Directive.[...]

The answer to the second question must therefore be that Article 3(1) of Directive 2004/38 must
be interpreted as meaning that a national of a non-member country who is the spouse of a Union
citizen residing in a Member State whose nationality he does not possess and who accompanies or
joins that Union citizen benefits from the provisions of that directive, irrespective of when and
where their marriage took place and of how the national of a non-member country entered the host
Member State.”

A somewhat similar problem arises in relation to Article 16. Article 16(1) provides that Union citizens
who have resided legally for a continuous period of five years in the host Member State shall have the
right of permanent residence there. This is transposed by regulation 12(1) which substitutes the phrase
“in accordance with these Regulations” for “legally”. This is clearly incorrect transposition. There are
many reasons why a person might have legal residence in Ireland, other than in accordance with the
Regulations. The Directive appears to allow persons to add together different periods of legal
residence for the purposes of reaching the five year total. A particular problem with the way in which
this provision has been transposed is that a person cannot start to add up the five years prior to the
regulations being made (i.e., in April 2006). Article 16(2) makes the same provision in respect of
family members and is transposed in the same incorrect way by regulation 12(1).

The manner in which Ireland has transposed this provision significantly prejudices the aims of the
Directive.

Another conformity problem in relation to Articles 10, 19 and 20 is that the documents required in the
different Schedule by Ireland go beyond what is envisaged and permitted by the Directive. These
provisions oblige Union citizens to inform the Irish authorities about particulars which go beyond of
what is foreseen in the Directive and also to submit documents necessary to support such particulars
(identity, family link and meeting any other requirements)

Article 25(1) of the Directive has arguably been transposed incorrectly in a manner that perhaps
indicates a certain attitude to the Directive on the part of the Irish authorities. Article 25(1) provides:

Possession of a registration certificate as referred to in Article 8, of a document certifying

permanent residence, of a certificate attesting submission of an application for a family member
residence card, of a residence card or of a permanent residence card, may under no circumstances
be made a precondition for the exercise of a right or the completion of an administrative formality,
as entitlement to rights may be attested by any other means of proof.

This is transposed by regulation 18(3):

A person to whom these Regulations apply may be asked to present a permanent residence
certificate, residence card, permanent residence card, or evidence of an existing application for
such a certificate or card, in order to exercise any entitlement under these Regulations, but failure
to provide such document or evidence may not of itself be used as a reason to refuse a person so
entitled to such entitlement.

In one sense, Article 25(1) has been correctly transposed. Regulation 18(3) provides that failure to
provide the documents cannot of itself be used as a reason to refuse a person so entitled to such
entitlement. However, by first stating that a person can be asked for these documents, regulation 18(3)
sends a message to administrators that documents should generally be requested. Also, regulation
18(3) does not explain – in the same way as the Directive – why it is that documents cannot be used as
a precondition.

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For these reasons, the transposition has been considered on this point inadequate. However, this is a
question of interpretation

Change to accommodate position of nationals of Bulgaria and Romania

Ireland’s policy decision was not to allow nationals of Bulgaria and Romania the automatic right to
work upon accession, notwithstanding that this right had been accorded to all nationals of the EU-10
in 2004. The general position is that Bulgarian and Romanian nationals will be allowed to work once 5
years have passed after the accession date. This period may be shortened or lengthened to 7 years.

Regulation 18(1) of SI 656/2006 is the only provision of the regulations that has been altered to give
effect to this. Regulation 18(1) transposes Article 22 and Article 23 of the Directive. Regulation 18(1)
has not been altered insofar as it transposes Article 22. However, the manner in which Article 23 has
been transposed is altered. Article 23 provides:

Irrespective of nationality, the family members of a Union citizen who have the right of residence
or the right of permanent residence in a Member State shall be entitled to take up employment or
self-employment there.

In SI 226/2006, regulation 18(1)(b) provided:

A person to whom these Regulations apply shall be entitled … (b) notwithstanding anything in the
Employment Permits Act 2003 (No. 7 of 2003), to seek and enter employment, to carry on any
business, trade or profession and to have access to education and training in the State in the like
manner and to the like extent in all respects as Irish citizens,

This essentially exempted persons covered by the Regulations form the requirement to obtain a work
permit, and allowed them to be self-employed and to have access to education and training. The self-
employment and access to education and training provisions are reproduced as regulation 18(1)(c).
That is, the position in that respect is unchanged. However, the situation in respect of employment has
been altered, regulation 18(1)(b) now providing:

A person to whom these Regulations apply shall be entitled … (b) without prejudice to any
restriction on that entitlement contained in the Employment Permits Acts 2003 and 2006, to seek
and enter employment in the State in the like manner and to the like extent in all respects as Irish
citizens

This reverses the position from what pertained under SI 226/2006. Under SI 226/2006, persons
covered by the Regulations were exempt from the Employment Permits Act 2003. Under SI 656/2006,
persons covered by the Regulations are now covered by the Employment Permits Acts 2003 and 2006.
However, section 3 of the 2006 Act amends the 2003 Act by inserting a new section 2(10), exempting
some foreign nationals from the requirement to obtain a work permit. Insofar as it is relevant to the
current issue, it reads as follows:

(10) Without prejudice to the other provisions of this Act, this section does not apply to a foreign
national …
(c) who is entitled to enter the State and to be in employment in the State pursuant to the treaties
governing the European Communities (within the meaning of the European Communities Acts
1972 to 2003),…
but this section, subject to section 2A and any order under section 3A(1) for the time being in
force, does apply to a foreign national who is a national of the Republic of Bulgaria or Romania
(including at a time subsequent to the accession of the Republic of Bulgaria or Romania to the
European Union).

Section 2A provides that the requirement to obtain a work permit does not apply to Bulgarian or
Romanian nationals who fall within the second or third subparagraph of paragraph 2 of Annex VI of
the Treaty of Accession with the Republic of Bulgaria and Romania; nor does the restriction apply to
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any nationals who fall within paragraph 8 of that annex. Moreover, section 2A also provides that the
restriction on Bulgarian and Romanian nationals will not apply after 5 years after the accession date.
Section 3A allows the Minister for Justice, having regard to the Irish labour market, to lift the
restriction on Bulgarians and Romanians before the 5 year period expires. However, if the Minister
orders the lifting of the restriction early but then at or before 2 months before the end of the 5 year
period revokes the order lifting the restriction (i.e., re-imposes the restriction), then the restriction
comes into force again and applies for 7 years from the accession date.

The manner in which Regulation 18(1) now deals with the employment of Bulgarians and Romanians
appears to be acceptable. However, it is questionable whether the new subsection 2(10) of the
Employment Permits Act 2003 amounts to clear and adequate transposition of Article 23 of the
Directive. A foreign national is only exempted from the requirement to obtain a work permit if she is
entitled to enter the State and to be in employment in the State pursuant to the treaties governing the
European Communities. Accordingly, the exemption from the work permit requirement is not stated
clearly in Irish law, but is instead stated by reference to European Community law. This might have
been relatively clear if reference had been made to the Directive, but instead the reference is to
“pursuant to the treaties”. This does not appear to be clear transposition.

• Conclusion

In summary, it is fair to say that there are significant issues in relation to Ireland’s transposition of the
Directive. The issues arise most forcibly in relation to Ireland’s treatment of non-EU citizens. As the
issues over the “legal residence” requirement and the SK case demonstrate, the Irish authorities appear
to be particularly concerned about people using their entitlements under the Directive to get around
other immigration requirements. This is a significant political issue in Ireland and a matter on which
the Department of Justice has strong views.

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SUMMARY DATASHEET

1. Transposing legislation

Directive 2004/38/EC was transposed in Ireland by SI 226/2006 European Communities

(Free Movement of Persons) Regulations 2006. It was transposed on time.

2. Assessment of the transposition

a) Incomplete transposition or non-transposition

Art. 5(2) – exemption for valid residence card holders not transposed.
Art.14(3) – the requirement that an expulsion measure not be an automatic consequence of a
Union citizen’s or her family member’s recourse to the social assistance system of a
Member State is not transposed.
Art.14(4)(a) No transposition of requirement that Union citizens or family members cannot be
expelled if the Union citizens are workers or self-employed.
Art.14(4)(b) No transposition of requirement that jobseekers cannot be expelled.

Art.15(1) Full set of procedural requirements not transposed.

Art.15(2) No transposition of requirement that expiry of passport or identity card shall not
constitute a ground for expulsion.
Art.25(2) No transposition of provision stating fees for residence cards.

Art.27(2) Requirement that public policy and security measures be based on proportionality not
transposed.
Art.30(3) Requirement that notification of decision specify the court or administrative authority
to which the person concerned may lodge an appeal is not transposed.

b) Incorrect or imprecise/ambiguous transposition

Art. 3(1) The transposing legislation requires previous lawful residence for third country family
members, which is not in line with the ECJs Metock case-law.
Art. 3(2) (a) Article 3(2)(a) uses the phrase “the country from which they have come” and that this
phrase is transposed as “country of origin, habitual residence or previous residence”.
The Irish Regulations may be wider on this point. On the other hand, this could
preclude consideration being given to a permitted family member who has just come
from another EU Member State. Under the Directive, consideration would be required
as this would be the country from which the person had come. Accordingly,
transposition on this point may be inaccurate. In order to avoid this possibility, the
regulations should be amended to include “country from which they have come” as a
possible qualifying condition.
Art. 5(2) 2nd There is no visa exemption for valid residence card holders.
indent
Art. 5(3) Article 5(3) of the Directive precludes immigration officials from placing stamps in
residence cards issued by all Member States, but Ireland only applies this prohibition
to residence cards issued by Ireland.
Art 7(3) Persons who cease to work in certain circumstances are meant to retain the status of
worker, but the Irish regulations only allow them to remain in Ireland as non-workers.
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Art.7(3)(d) Badly worded provision that suggests a person who is involuntarily unemployed loses
benefits under Directive.
Art. 8(4) The Irish Regulations use the test under the Social Welfare legislation as the definitive
test. While this test itself would take account of personal circumstances, it is arguable
that this is incorrect transposition as the Directive envisages that the social welfare test
is a minimum threshold but not one that can be applied rigorously in all cases.
Art. 9(1) No requirement imposed on Minister for Justice to issue a residence card where the
planned period of residence is for more than three months.
Art. 10(2) The documents listed in Schedule 2 (at 6, 7, 8, 9, 10, 16 , 17 and 19) are not relevant to
(b) (c) (d) establishing the family connection which is the sole basis for issuing the residence
(e) (f) card.
Art. 12(1) Ireland is not allowed to limit the right of residence of family members who are EU
citizens to “an individual and personal basis”. This restriction can only be applied to
family who are not EU citizens.
Art. 12(2) The transposing provision does not explicitly allows a family member to remain on the
second basis that they are members of the family, already constituted in Ireland of a person
indent satisfying these requirements.
Art.12(3) “completion of the course of study” wrongly substituted for “completion of studies”,
thereby reducing effect of Directive.
Art. 13(1) Ireland incorrectly limits the right of residence of family members who are EU citizens
to “an individual and personal basis”.
Art. 14(2) The Directive envisages an official inquiry where there is a reasonable doubt as to
second whether a person is entitled to reside in the Member State. But Ireland imposes a
indent general onus of proof on all such persons to demonstrate that they are entitled to reside.
Art.16(1) Permanent right of residence provided only to persons who resided “in accordance
with the Regulations” rather than “legally”.
Art.16(2) Permanent right of residence provided only to persons who resided “in accordance
with the Regulations” rather than “legally”.
Art.17(1) (a) Persons who are entitled to permanent residence before five years under the Directive
are only given a “right to apply” for permanent residence under the Irish Regulations.
Art. 19(1) Ireland requires documents ostensibly to establish permanent residence that are not
relevant to establishing permanent residence, eg occupation of applicant in Ireland,
duration of employment in Ireland, immigration number.
Art. 20(1) Ireland requires documents other than those envisaged by the Directive for the
purposes of non-EU family members acquiring the permanent residence certificate.
Art. 23 The Irish Regulations (by reference to the Employment Permits Act 2003, as amended)
make the entitlement of the family members of an EU citizen to enter and seek
employment depend on “the Treaties governing the European Community”. This is
unclear transposition.
Art. 24(1) The principle of equal treatment is only specifically transposed in relation to a number
of contexts: carrying on business, having access to education and training, receiving
medical care and services. The principle may have application in other circumstances
as well. These should have been enumerated.
Art.25(1) Phrasing of Irish Regulations implies that documents should generally be requested
before a person can exercise a right.
Art.27(1) Irish Regulations implement Article 27(1) by limiting movement in Ireland rather than
movement into Ireland.
Art 28(1) List of permissible factors to take into account in expulsion decision transposed as an
exhaustive list.
Art 28(3) No reference made to UN Convention on the Rights of the Child in relation to
assessment of the best interests of minor in expulsion decisions.
Art. 29(1) Impermissibly wide definition of public health.
Art.29(3) Not enough is done to prevent a routine policy of medical examinations.
Art.30(1) No transposition of absolute requirement to ensure that notification is in a language
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 that a person understands.
Art.30(2) No transposition of absolute requirement to ensure that notification is in a language
that a person understands.
Art.31(3) Judicial redress procedures will not allow for adequate review of factual basis of
decisions.
Art 32(1) Under the Directive, a person can apply for exclusion order to be lifted after a
reasonable period, but the Irish Regulations prevent such an application being made
before a three year period has elapsed – in all cases.
Art 33(2) Under the Directive expulsion orders can only continue to be enforced after two years
if “the individual currently and genuinely poses a threat to public policy or security”.
The Irish regulations only require the Minister to be satisfied that the circumstances
giving rise to the making of the order still exist.
Art.35 Loss of rights and entitlements is made an automatic consequence of fraud or abuse of
rights

c) Minor instances of non-conformity

Art.4.4 It is possible in Irish law for passports to be issued for a duration of less than 5 years in
certain circumstances.
Art.17.1 (b) The transposing provision does not adequately cover the range of social welfare
benefits that a person might receive where she has permanent incapacity for work.

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ABBREVIATIONS USED

ECJ European Court of Justice

Art Article

IEHC Irish High Court Decision

IESC Irish Supreme Court Decision

IR Irish Reports

ILRM Irish Law Reports Monthly

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1 INTRODUCTION

This conformity study analyses in detail the provisions of Directive 2004/38/EC on the free movement
of EU citizens in its consolidated version, and it compares it with the legislation in place in Ireland.

Directive 2004/38/EC repealed the earlier directives on free movement of persons (Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC,
90/365/EEC and 93/96/EEC) as from 30 April 2006.

EU citizenship gives every Union citizen the right to move and to reside freely within the territory of
the Member States. The facilitation and promotion of this right, which is at the same time one of the
fundamental freedoms of the internal market, is the objective of Directive 2004/38/EC. A second
objective of Directive 2004/38/EC was to codify and review the various pieces of legislation and case-
law dealing with this issue.

Free movement as a fundamental freedom of the internal market

Free movement is one of the fundamental freedoms of the internal market and can therefore only be
restricted in a limited number of pre-determined circumstances. Thus, national legislation cannot adopt
more restrictive legislation than provided for in the Directive.

Directive 2004/38/EC introduces, on the one hand, a uniform approach regarding the formalities that
Member States can impose upon EU citizens residing in their territory. These formalities are expressly
established in the Directive and restricted in function of the duration of the stay in the Member States.

• For a stay of less than three months, the only formality a Member State can impose is the
presentation of a valid passport or national identity card.

• For residence of more than three months, a Member State can only require the EU citizen to register
in the population register of the place of residence. This registration needs to be validated
immediately if a certain number of conditions are complied with. The Member State can only
require the EU citizen to present proof that he/she is a worker, self-employed person, student or has
sufficient resources not to become a burden upon the social security system of the Member State.
Member States cannot lay down a fixed amount of what they consider to be “sufficient resources”,
but must always take into account the personal situation of the person concerned. Family members
of the EU citizen will have to present an identity document and proof of the family link to an EU
citizen.

• After five years of continuous residence in a Member State, an EU citizen obtains a right to
permanent residence. The host Member State shall issue a document certifying permanent
residence. A permanent resident has the right to be treated equally to a national of the Member
State.

On the other hand, the Directive also determines and clarifies the only acceptable reasons for
restriction of the free movement of citizens by Member State authorities, namely for reasons of public
order, public security and public health. (For the interpretation and conditions of such exceptions, it is
important to rely upon the case-law of the Court of Justice.)

These measures guarantee a strong protection against expulsion for EU citizens who have been long-
term residents in another Member State. Such measures need to be proportionate and shall always look
at the personal conduct of the individual concerned which must represent a “genuine, present and
sufficiently serious threat affecting one of the fundamental interests of society”. In addition, the
Directive establishes some procedural safeguards in case an expulsion decision is considered.

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1.1 OVERVIEW OF THE LEGAL FRAMEWORK IN IRELAND

Ireland is a unitary State. The 1937 Constitution establishes a system of government along the lines of
the Westminster model, but with two important differences. First, the Constitution recognises a
number of constitutional rights. The legislature and executive must act in accordance with the
Constitution as interpreted by the courts. Secondly, the Constitution can only be amended by the
people in referendum. The people, not Parliament, are sovereign.

Ireland is a common law system. The sources of law are therefore the Constitution, statutes and case
law. Article 15 of the Constitution provides that the Oireachtas (the National Parliament) is the only
body with power to make laws for the State. However, section 2 of the European Communities Act
1972 gives effect to European Community law in the State. In addition, section 3 of that Act allows
Government Ministers to implement EC Directives by way of secondary legislation. Assigning such
an expansive legislative role to Ministers would breach Article 15, but Article 29.4.10° of the
Constitution provides effective constitutional immunity for the European Communities Act 1972. The
Irish courts have held that it is permissible for an EC Directive to be implemented by regulation (and
not primary legislation) where the Directive deals with all matters of principle and policy, leaving only
matters of detail to Ireland.

1.2 FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC

IN IRELAND

1.2.1 Distribution of competences according to the national Constitution

In Irish law, the control of immigration is treated analogously to royal prerogatives in the United
Kingdom. The courts have often identified the control of immigration as an inherent state power that
vests in the Government independently of any law explicitly assigning that power to the Government.
However, immigration control is now widely regulated by legislation.

Directive 2004/38/EC has been implemented in Ireland by SI 656/2006 European Communities (Free
Movement of Persons) Regulations 2006. This is secondary legislation made by the Minister for
Justice under the authority granted by the European Communities Act 1972. It is likely that the Irish
courts will accept this method of implementation as acceptable: by and large SI 656/2006 does not
deal with new matters of principle and policy that are not addressed by the Directive. For the most
part, SI 656/2006 fills in matters of detail. (There are, however, several instances of incorrect and
inadequate transposition that will be addressed below.)

The Minister for Justice is the member of the Government (Cabinet) with responsibility for
immigration. As well as making the regulations, the Minister is also the recipient of most of the
powers granted under the regulations. It is he who has most of the responsibility for taking decisions
under the regulations.

Given the unitary character of the Irish State and the approach taken in the regulations, there is very
little potential for conflict of responsibilities in the implementation of the Directive. The Minister for
Justice is in almost complete control of all relevant legal and administrative provisions for
implementing the Directive. The Minister for Enterprise and Employment has responsibility for work
permits, but these are not directly relevant to the Directive. There are some statutory agencies that
have functions in other areas of immigration law, such as the Reception and Integration Agency for
asylum seekers and the Refugee Appeals Tribunal for asylum seekers. Again, however, these agencies
and bodies do not have any direct role in the implementation of the Directive.

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 1.2.2 General description of organisation of national authorities implementing
Directive 2004/38/EC Ireland

As indicated above, the Minister for Justice is by far the most significant figure in the implementation
of the Directive in Ireland. He is a member of the Government. This means that he is an elected public
representative appointed by the Taoiseach (Prime Minister) to the Government. The Government has
collective responsibility for the running of the State. The Minister for Justice has responsibility for
various matters, including the police, control of crime, the courts system, immigration, equality and
law reform.

Although the Minister for Justice is assigned many powers under SI 656/2006, it is not the Minister in
person who will exercise these powers. Under Irish administrative law, it is permissible for a
Government Minister to delegate a power to a person within their department. Accordingly, decisions
under the regulations will in fact be made by civil servants working within the Department of Justice,
Equality and Law Reform. It is unclear from the regulations how senior these civil servants must be.
However, the review provisions in regulation 21 provide that any review of a decision made under the
regulations must be undertaken by a person of a senior grade to the official who made the initial
decision.

SI 656/2006 also refers at several points to immigration officers. Under section 3 of the Immigration
Act 2004, the Minister for Justice has a power to appoint immigration officers to perform functions
under that Act but also, in effect, under other immigration legislation. These officers have a general
role in operating and enforcing immigration law. They have a number of functions under SI 656/2006.
It is envisaged that immigration officers will be the officials dealing with entry into the State:
accordingly, immigration officers are instructed in regulation 4 not to place entry stamps into
passports in certain instances. Also, many of the enforcement powers in regulation 20 are exercisable
by immigration officers.

SI 656/2006 also refers to members of An Garda Síochána. This is the national police force. The
national police force is headed by the Garda Commissioner who is in turn answerable to the Minister
for Justice. The enforcement powers under regulation 20 are conferred on members of the Garda
Síochána (i.e., police officers).

SI 656/2006 refers to registration officers. Regulation 2 defines registration officers as:

"registration officer" means the officer in charge of the Garda National Immigration Bureau in the
Dublin Metropolitan Area or the Superintendent of the Garda Síochána in a Garda Síochána
District outside that Area”

The Dublin Metropolitan Area is the police area for Dublin. Immigrants in Dublin deal with the Garda
National Immigration Bureau. Outside of Dublin, they deal with the local Garda Superintendent.
(Superintendent is quite a high rank.) There is an obligation in the Regulations 11(4) (discussed
below) for family members (non-EU citizens) to inform the registration officer of changes in
circumstances.

2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE

2004/38/EC

As indicated above, Directive 2004/38/EC has been transposed in Ireland by way of secondary
legislation. The Minister for Justice made SI 226/2006 European Communities (Free Movement of
Persons) Regulations 2006 in order to transpose the Directive in Irish law. SI 226/2006 was revoked
by SI 656/2006 European Communities (Free Movement of Persons) (No 2) Regulations 2006. These
latter regulations repeated all the provisions of SI 226/2006 subject to (a) one change to deal with the
position of nationals of Bulgaria and Romania; (b) some minor changes concerning numbering; (c) the
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addition of one further piece of required information in one of the forms required by the regulations. In
this section, the problems with the transposition of the Directive will be analysed. This analysis draws
on and expands on the commentary of the Table of Correspondence.

As well as addressing the terms of the implementing regulations, this analysis will present the national
case law. There is also an attempt to provide a sense of what is happening in practice. As always, the
practical application of a law is more difficult to identify with precision. The expert believes that the
account provided is accurate, but he cannot stand over it to the same extent as over the legal analysis.

2.1 Definitions, family members and beneficiaries

Definitions: the concept of “family members”(Article 2)

The definitions in Article 2 of the Directive have been fully and properly transposed. The regulations
recognise two types of family member: qualifying family members and permitted family members.
Qualifying family members are those who receive the automatic rights under Article 3(1) of the
Directive. Permitted family members are those mentioned in Article 3(2) of the Directive who have
the right to have their entry and residence facilitated. This is an acceptable way of implementing the
Directive.

The approach taken in the regulations is, for the most part, to confer the same rights on “qualifying
family members” and “permitted family members”. Wherever the regulations use the phrase “family
member”, both types of family member are covered. It is only where specific rules are stipulated for
“permitted family members” that Article 3(2) people receive less protection than Article 3(1) people.
In this regard, see regulation 5 which governs the conditions of entry for “permitted family members”.
Essentially, a permitted family member can be required to demonstrate that she falls within the
definition and also can be required to have an Irish visa. Regulation 6 provides a more limited right for
“permitted family members” to remain in the State. Such a person has a right to remain in the State if
enrolled in an education establishment. The Minister for Justice has a discretion to allow such a person
remain in the State after an examination of her personal circumstances. Otherwise, the same provisions
apply both to qualifying family members (Article 3(1) of the Directive) and permitted family members
(Article 3(2) of the Directive).

As noted in the Table of Correspondence, there is one issue to flag in relation to the definitions.
Article 2(2)(b) of the Directive provides that a “family member” means the partner with whom the
Union citizen has contracted a registered partnership but only if the legislation of the host Member
State treats registered partnerships as equivalent to marriage. Ireland does not, at present, recognise
registered partnerships at all. However, the Government intends to propose legislation in the coming
months. There is a constitutional concern as to whether it is permissible for the Oireachtas to treat
same-sex partnerships as equivalent to marriage, given the protection afforded to (opposite-sex)
marriage in the Constitution. It is therefore unlikely that whatever legislation is proposed will treat
registered partnerships as equivalent to marriage. If this is so, it will remain permissible for Ireland not
to provide a specific transposition of Article 2(2)(b). However, this issue should be kept under review.

Although this point does not arise directly from the definitions section, it is appropriate to note here
that the Irish Regulations do not purport to offer their own interpretation of Community terms such as
“worker” and “self-employed”. There is thus no reason to anticipate that the Irish authorities will
attempt to derogate from Community law in their application of these terms. The possibility cannot be
entirely ruled out that there will be problems in practice, but it is not possible to address these
problems in the context of a transposition study such as this.

Beneficiaries and facilitation of entry and residence (Article 3)

Article 3 deals with the beneficiaries of the Directive and also imposes an obligation on the Member
States to facilitate entry for a secondary class of beneficiaries (essentially, members of the extended
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family). The Irish Regulations adequately transpose most of these provisions, taking a particularly
generous approach to the secondary class of beneficiaries (giving them a presumptive right of entry).
However, there is a significant problem in that a “lawful residence” requirement has been imposed.

• Article 3(1) and the requirement under Irish law for lawful residence

Article 3(1) of the Directive provides that the Directive shall apply to all citizens who move to or
reside in a Member State other than that of which they are a national, and to their family members as
defined in point 2 of Article 2 who accompany or join them. This provision has been inadequately
transposed by regulation 3(2) which provides that the regulations shall only apply to a family member
who is lawfully resident in another Member State. Until the Metock case (see below), the European
Court of Justice did not have an entirely consistent jurisprudence on this issue.

The application of regulation 3(2) by the Irish authorities has led to 100s of cases being brought to the
High Court. The sense of legal practitioners in this area is that the lawful residence requirement is
being used as a clear-cut requirement for disallowing residence claims. For instance, claims for
residence that might fail on the basis that there is a marriage of convenience are instead being refused
on the lawful residence basis. If this is the case, it is not acceptable and does not amount to a proper
transposition of the Directive.

Challenges to immigration decisions are taken to the High Court by way of judicial review. For
administrative reasons – and given the volume of cases – the High Court has arranged a special list for
dealing with immigration cases. This list is managed by Mrs Justice Finlay Geoghegan. She has
divided the lawful residence cases into five categories of case to facilitate their management and to
allow issues be resolved by test cases:

1. A non-EU national family member enters the State with an EU-national, but coming from
outside the EU.
2. A non-EU national is lawfully resident in the State (on a work permit) and marries an EU
national in the State.
3. A non-EU national is lawfully resident in the State (on a student visa) and marries an EU
national in the State.
4. A non-EU national seeks asylum in the State and, while in the asylum process, marries an EU
national.
5. A non-EU national is in the State illegally (for instance while awaiting deportation having
failed to obtain refugee status) and marries an EU national.

In each of these situations, the non-EU national although now a family member does not meet the
requirement in regulation 3(2) that they have been lawfully resident in another EU Member State
when they sought to enter the State in the company of an EU citizen or sought to join the EU citizen in
the State. There may be other problems in relation to categories 2-5. It is not clear that such persons
are “accompanying” or “joining” their EU citizen family member, irrespective of any lawful residence
requirement. However, these cases are not being refused on this basis.

It is the expert’s understanding that many applications were refused under each of these five headings.
However, the State settled the cases of persons falling in categories 1-3 on the basis that the persons
would be entitled to have their applications reconsidered under the Directive (by implication without
reference to a lawful residence requirement). Cases under categories 4 and 5 were not settled. Finlay
Geoghegan J referred a number of questions for the European Court of Justice in a number of
representative cases.

It now appears to be the case that a number of people in categories 1-3 have had their applications
refused again. The reasoning of the Court of Justice in Metock (see below) applies to these situations
also and the Minister for Justice will have to reconsider these cases.

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The requirement that the Union citizen and family member be lawfully resident in another Member
State before coming to Ireland also poses difficulties with respect to the ECJ’s case law on frontier
workers.

In another case, another High Court judge has applied the lawful residence requirement. In SK v
Minister for Justice Equality and Law Reform [2007] IEHC 216, Hanna J refused an application for a
judicial review of the Minister’s decision to refuse a residency application to a spouse of an EU
citizen. The applicant had sought asylum in Belgium but had been refused. He then lived illegally in
the United Kingdom for a number of years. There he met his future spouse and formed an intention to
marry. They both came to Ireland where he submitted an asylum application. While the asylum
application was pending, it appears that the couple formalised their marriage in Ireland. Hanna J
summarised the facts in the following way:

“No oral evidence was heard in this case. I must therefore make my findings based solely on
affidavit evidence including the uncontradicted affidavit of Ms. Sayers. It seems probable that the
intention of the applicants has at all material times been to avoid or by-pass the provisions of Irish
immigration law with a view to obtaining for the first named applicant a right of residency as the
spouse of a citizen of a Member State of the European Union. I am satisfied that in order to
achieve this end, the first named applicant engaged in deceitful and dishonest behaviour to the
extent of lying about how he came to Ireland, lying about his personal circumstances, and
concealing from the authorities, his failed attempt to obtain asylum in Belgium some three years
previously.

It seems improbable that the second named applicant was not aware of the deceit in which the first
named applicant was engaged.

However, it must be pointed out that no case was made that the marriage entered into between the
applicants was other than a valid marriage. Expressly, it is not alleged that this was a marriage of
convenience.

Such is the factual background against which this case must be considered.”

The Minister had refused the Applicant’s application on the basis that he had not been lawfully
resident with his spouse in another Member State prior to coming to Ireland. The Applicant challenged
the manner in which the Directive had been transposed into Ireland in such a way as to require lawful
residence in another Member State.

Hanna J considered that the case before him more closely resembled Akrich than Giaand applied the
ECJ’s reasoning from Akrich:

It appears, therefore, that the Court in Jia is at pains to distinguish the facts of that case from the
facts in Akrich, emphasising, importantly, the lawfulness of Ms. Jia’s presence in Sweden and the
fact that she was not seeking to evade national immigration laws. The approach of the Court in the
Akrich case cannot be transposed into the Jia case and cannot apply to such a situation. The court
did not seek to disturb the approach of the court in Akrich or demur from it having regard to its
particular factual background.

It seems to me that neither can the circumstances surrounding the present application fit the
circumstances in the Jia case. Therefore, for the purposes of dealing with this application, the Jia
decision should be left to one side. The facts of Akrich bear close resemblance to this application
and it seems to me that the appropriate manner in which this application should be viewed would
be to follow the view of the Court as enunciated in the Akrich decision.…

The ruling therefore, was that the non-national spouse was not entitled to avail of the provisions of
Regulation No. 1612/68 unless he was lawfully resident in another EU Member State. I am
satisfied that it is this judgment that permits the consideration of whether or not a non-national
spouse of a Member of an EU State was lawfully resident in another Member State. In my view
S.I. No. 226/2006 reflects and gives effect to the 2004 Directive and the decision of the European
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 Court of Justice in Akrich. I am of the view that the 2006 Regulations amount to an administrative
implementation of the policies and principles of the 2004 Directive and take account of the scope
and latitude afforded to individual Member States to enact and maintain the integrity of their
respective immigration laws. I am not persuaded that the restrictive provisions of Regulation 3(2)
of S.I. No. 226/2006 do other than make supplementary and consequential provision for the
purposes of the Regulations having due regard both to the Directive and the jurisprudence of the
Court of Justice as enunciated in Akrich. I am satisfied that the 2006 Regulations are intra vires
and in accordance with law.

He then interpreted Article 3 of the 2004 Directive in the following way :

The intended beneficiaries of the Directive are clearly Unions citizens (such as the second named
applicant) who have moved to or reside in a Member State other than that of which they are a
national and to their family members who accompany or join them. The first named applicant was
not such when the applicants entered Ireland. Clause 2 of Article 3 directs Member States to
facilitate entry and residence, inter alia, of family members, irrespective of their nationality, not
falling under the definition in point 2 of Article 2, who, in the country from which they have come,
are dependents or members of the household of a Union citizen having the primary right of
residence or, for serious health grounds, strictly require the personal care of the family member by
the Union citizen.

I think this helps us in identifying the intended scope of the Directive. Article 3 provides that the
Directive applies to all Union citizens who move to or reside in a Member State other than that of
which they are a national and to their family members, as defined in point 2 of Article 2, who
accompany or join them. The Directive also covers family members, irrespective of nationality,
who, in the country from which they have come are dependents. It is clear, in my view, that the
Directive is intended to apply to families which were established in a Member State prior to the
move to the host Member State. It is intended to facilitate family members lawfully resident in
another Member State who seek to join or accompany a spouse who is in employment or self-
employment in the State i.e. the host State.

This case has been appealed to the Supreme Court. The reference to be made by Finlay Geoghegan J
in the context of the other cases essentially asks the ECJ to decide the same point that was decided by
Hanna J in SK. This point has now been definitively resolved by the European Court of Justice in a
manner different from that of Hanna J in SK. In Case C-127/08 Metock, the European Court of Justice
concluded:

The answer to the first question must therefore be that Directive 2004/38 precludes legislation of a
Member State which requires a national of a non-member country who is the spouse of a Union
citizen residing in that Member State but not possessing its nationality to have previously been
lawfully resident in another Member State before arriving in the host Member State, in order to
benefit from the provisions of that directive.

The answer to the second question must therefore be that Article 3(1) of Directive 2004/38 must
be interpreted as meaning that a national of a non-member country who is the spouse of a Union
citizen residing in a Member State whose nationality he does not possess and who accompanies or
joins that Union citizen benefits from the provisions of that directive, irrespective of when and
where their marriage took place and of how the national of a non-member country entered the host
Member State.”

• Problems with the transposition of Article 3(2)(a)

Despite the more favourable approach adopted by the Irish legislation regarding other family members
covered by the Article 3(2) of the Directive, the Irish Regulations have not fully correctly transposed
Article 3(2)(a).

Article 3(2)(a) uses the phrase “the country from which they have come” and that this phrase is
transposed as “country of origin, habitual residence or previous residence”. The Irish Regulations may
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be wider on this point. On the other hand, this could preclude consideration being given to a permitted
family member who has just come from another EU Member State. Under the Directive, consideration
would be required as this would be the country from which the person had come. Accordingly,
transposition on this point may be inaccurate. In order to avoid this possibility, the regulations should
be amended to include “country from which they have come” as a possible qualifying condition.

2.2 Rights of exit and entry

Right of exit (Article 4)

Article 4 provides a general right for Union citizens and family members, provided they have the
required identity card or passport, to leave the territory of a Member State. In State (M) v Attorney
General [1977] IR 73, the Irish courts recognised a constitutional right to travel outside Ireland.
Regulation 18(1) effectively extends these rights to the non-Irish nationals who are covered by the
Directive. There is, however, one possible difficulty.

• Article 4(4) – validity of passports

Article 4(4) of the Directive requires that passports issued to a Member State’s own nationals be valid
for a period of at not less than five years. As noted in the ToC, there is currently no legislation
governing the issue of passports. Instead, passports are granted by the Government (the Minister for
Foreign Affairs) in exercise of an inherent state power. However, there is currently a Passports Bill
before the Oireachtas, so this issue will be subject to detailed regulation shortly.

At present, passports are generally issued for a period of 10 years. This is referred to as the “standard
passport”. However, children under the age of three are only granted passports for three years. This is
prima facie in breach of Article 4(4). Also, if a person loses her passport (particularly if a person
frequently loses her passport), she may be issued with a limited validity passport. This passport might
be valid for less than five years. This would also appear to be in breach of Article 4(4). However, the
Court of Justice might be prepared to allow for proportionate restrictions on the rights granted by
article 4(4). If so, these restrictions would surely be permissible.

Right of entry (Article 5)

Article 5 provides a general right of entry for Union citizens and family members. On its own terms,
this has been transposed adequately by the Irish regulations. However, there are two difficulties
relating to references to public health refusals and the fact that no exemption has been made for valid
residence card holders.

• Article 5(1) and Article 29 – public health

Article 5(1) provides the basic right to enter. This is transposed by regulation 4(1) and 4(2). This
transposition is adequate, except insofar as the regulations refer to public health. Article 27 allows for
refusal of entry on public health grounds. Article 29 provides for a definition of public health, listing
the sorts of diseases that may justify invocation of the public health ground. In one respect, Ireland’s
definition appears to be wider. Article 29(1) refers “other infectious diseases or contagious parasitic
diseases if they are the subject of protection provisions applying to nationals of the host Member
State.” In contrast, Schedule I of the Irish Regulations refers to: “Other infectious or contagious
parasitic diseases in respect of which special provisions are in operation to prevent the spread of such
diseases from abroad.” These phrases are not identical and may allow Ireland to impose more stringent
restrictions than the Directive allows.

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 • Article 5(2) – lack of exemption for family members holding residence cards

Article 5(2) provides that possession of a valid residence shall exempt family members from the visa
requirement. This is not transposed into the Irish regulations at all. This is a serious failure of
transposition as it may have a serious practical effect in some circumstances. It also demonstrates an
unwillingness, on the part of Ireland, to accept the decisions taken by other Member States in respect
of non-EU citizen family members.

Article 5(3) provides that immigration officials cannot place an entry or exit stamp in the passport of
the family member of an EU citizen if the family member has a valid residence card. Regulation 4(4)
of the Irish Regulations transposes this restriction in relation to residence cards issued in Ireland, but
not in relation to residence cards issued by other Member States. This is incorrect transposition.

2.3 Right of residence

2.3.1 Right of residence for up to three months (Article 6)

Article 6 grants an initial right of residence for up to three months. This right needs to be read in
conjunction with article 14. This results in two interpretations being open. Depending on which
interpretation is taken by the European Court of Justice, Ireland may not have transposed article 6
correctly.

• Article 6 and Article 14 – right of residence subject to not being a burden

Article 6 provides:

1. Union citizens shall have the right of residence on the territory of another Member State for a
period of up to three months without any conditions or any formalities other than the requirement
to hold a valid identity card or passport.

Article 14(1) provides:

1. Union citizens and their family members shall have the right of residence provided for in Article
6, as long as they do not become an unreasonable burden on the social assistance system of the
host Member State.

The Irish Regulations transpose these two provisions together in a way that makes the 3 month right of
residence depend on not being an unreasonable burden on the social welfare system during those 3
months. In this regard, regulation 6 provides:

6. (1) Subject to Regulation 20, a person to whom these Regulations apply may reside in the State
for up to 3 months on condition that he or she- …
(b) does not become an unreasonable burden on the social welfare system of the State.

This appears to the expert to be an adequate transposition of the Directive.

2.3.2 Right of residence for more than 3 months (Article 7-13)

(a) Conditions under Article 7

Article 7 provides for the right of residence to continue after three months where certain conditions are
satisfied. For the most part, these conditions have been adequately transposed by regulation 6(2) and
6(3). However, there are two difficulties.
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 • Retention of the status of worker under Article 7(3)

Article 7(3) provides that a person will retain the status of worker in certain circumstances where she
ceases working. However, this has been transposed by regulation 6(2)(c) providing that a person may
remain in the state. This is inadequate transposition because a person who retains the status of worker
(and has a right of residence for that reason) is in a stronger position than a person who just has a
generic right of residence. For example, being a worker is an important protection against expulsion; a
person who is a worker will gain the right of permanent residence sooner. It follows that Article 7(3)
has not been properly transposed.

In addition there is a problem in relation to the transposition of the specific situation described in
Article 7(3)(d) of the Directive.

Article 7.3(d) provides that a Union citizen who is no longer a worker or self-employed person shall
retain the status of worker or self-employed person if she embarks on vocational training. However,
this training must be related to the previous employment unless the worker is involuntarily
unemployed. This implies that, where the worker becomes involuntarily unemployed, the training can
be in any area, not just that in which the worker used to worker. The rationale of this provision is easy
to understand.

Regulation 6(2)(c)(iv) transposes this incorrectly by stating “except where he or she is involuntarily
unemployed, he or she takes up vocational training related to the previous employment”. Taken
literally, this means that a worker who becomes involuntarily unemployed but moves into vocational
training (as distinct from registering as unemployed) does not retain the status of worker.

In the expert’s view, an Irish court would be likely to correct this provision by reference to the
Directive. Nevertheless, it remains incorrectly transposed.

(b) Administrative formalities for Union citizens (Article 8)

Ireland has not imposed administrative formalities for Union citizens. However, Ireland has transposed
the definition of sufficient resources under Article 8(4) as this is relevant to several other issues in the
Directive. There is one sense in which Ireland may be said to have incorrectly transposed this
definition.

• Article 8(4) – definition of sufficient resources

The Irish Regulations use the test under the Social Welfare legislation as the definitive test. While this
test itself would take account of personal circumstances, it is arguable that this is incorrect
transposition as the Directive envisages that the social welfare test is a minimum threshold but not one
that can be applied rigorously in all cases.

(c) Family members who are not nationals of a Member State (Article 9-11)

• Administrative formalities (Article 9)

Article 9 provides for the issuing of residence cards to the family members of EU citizens. Ireland has
mostly transposed this article adequately. However, due to poor wording, the actual right to a
residence card has not been properly transposed.

o Article 9(1) – issue of residence cards

Article 9(1) provides simply that Member States shall issue a residence card to family members of a
Union citizen who are not nationals of a Member State, where the planned period of residence is for
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more than three months. This provision is transposed by regulation 7(2), but regulation 7(2) does not
impose any obligation on the Minister to issue a residence card in these circumstances. Under the
regulations, the Minister must only issue a residence card where she “is satisfied that it is appropriate
to do so”. This is incorrect transposition for two related reasons: first, it grants the Minister the
discretion; second, it does not identify the criteria on the basis of which the card must be issued (i.e.,
planned period of residence for more than 3 months).

Article 9(3) of the Directive provides that failure to comply with the obligation to apply for a
residence card may make the person concerned subject to proportionate and non-discriminatory
sanctions. Regulation 25 of the Irish Regulations is the general penal provision for the Regulations. It
provides that any person who fails to comply with a requirement of the Regulations is liable, on
summary conviction, to a penalty of up to €5,000 and/or a term of imprisonment not greater than 12
months. Although a Court would probably not impose so drastic a sanction for a breach of the Article
9(3) requirement, it would be disproportionate and the Regulations should not allow for it. This is
incorrect transposition.

• Issue of residence cards (Article 10)

Article 10 is a detailed article addressing the issue of residence cards to family members of a Union
citizen who are not themselves Union citizens. This has been incorrectly transposed by the Irish
Regulations, because Schedule 2 to the Regulations requires more documentation than is authorised by
Article 10(2) of the Directive. Article 10(2) of the Directive, read in conjunction with Recital 14 to the
Directive, establishes the maximum that Member States may require of the persons concerned with a
view to recognising their right of residence. Case-law of the Court has repeatedly confirmed that the
right of third country family members of a Union citizen to enter the territory of the Member States
and to reside there with the Union citizen derives under Community law from the family ties alone.
The documents, laid down in Article 10(2) of the Directive in an exhaustive way, attest exactly to the
identity of the family member, his or her family links with the Union citizen and the Union citizens
right to reside in the host Member State. In contrast to that, Article 7(1)(b) of the Regulations and
Schedule 2, to which this provision refers, obliges third country family members to inform the Irish
authorities about particulars which go beyond of what is foreseen in the Directive but also to submit
documents necessary to support such particulars. The following particulars are contrary to the
Directive as they are of no relevance in the process of ascertaining the applicants identity, family links
with a Union citizen and such citizens right to reside in Ireland:

With regard to the applicant:

6. Occupation, if any, of applicant

7. Immigration Reference Number and PPS Number in Ireland
8. Declaration of any criminal record
9. Immigration history in Ireland
10. Other documentary evidence

With regard to the Union citizen of whom the applicant is a family member/dependant:

16. Occupation of Union citizen in Ireland

17. Immigration reference number if any and PPS number of Union citizen in Ireland.
19: Date on which Union citizen first entered Ireland.

In addition, the application forms (annexed to this CS) require the applicant to declare whether he/she
has been convicted of any criminal offence in Ireland or abroad and whether there are charges pending
against him/her in Ireland or abroad. The applicant also has to declare his/her immigration history (if
he/she has previously resided in Ireland, if he/she has been deported etc). This is clearly against the
Directive.

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There is a further cause for concern but it probably does not qualify as incorrect transposition. Article
10(2) lists the type of documents that need to be submitted with an application for a residence card.
With the exception of requiring a passport, the Irish Regulations provide no assistance in working out
what sort of documents are necessary, instead referring (in Schedule 2) to “such documentary
evidence as may be necessary to support the application”. It would have been helpful to give examples
of this sort of documentation. In the expert’s view, transposition in this regard lacks clarity.

This has caused a number of problems in practice. Applicants do not know what documents they
should be submitting in order to support their application. Guidance of some type would be of
assistance.

The application forms include a check list of the documents requested:

• Passport(s) or National ID (if applicable)

• Evidence of residence
• Civil Marriage Certificate (if applicable)
• Partnership Certificate (if applicable)
• Birth Certificate (if applicable)
• 2 passport sized photos (signed on back)
• 2 passport sized photos of EU citizen (signed on back)
• Medical evidence (if applicable)
• Other evidence of relationship

It would seem that these are the only documents accepted (which will be against the Directive), but it
could not be confirmed. The form indicates that incomplete forms or failure to submit all requested
documentation will result in the automatic return of the application.

• Validity of residence cards (Article 11)

Article 11 provides for the period of validity of residence cards and provides that certain temporary
absences will not render the card invalid. These provisions have been adequately transposed by
regulation 8 of the Irish Regulations.

(d) Retention of the right of residence in the event of death, departure, divorce, annulment or
termination

• Retention of the right of residence by family members in the event of death or

departure of the Union citizen (Article 12)

Article 12 provides that family members retain the right to reside where the Union citizen dies or
leaves the Member State. The Article deals with a number of different groups of people. The Irish
Regulations transpose Article 12 as regulation 9(2). The wording of the Irish Regulations is odd on
some points and may accidentally have granted additional rights to permanent residence. However,
this, if anything, amounts to more favourable transposition and is not the concern of this study. Article
12(1) has not been properly transposed because Regulation 9(1)(a) of the Irish Regulations limits the
right of residence of family members who are EU citizens to “an individual and personal basis”. This
restriction can only be applied to family who are not EU citizens.

The Irish Regulations appear to have misinterpreted the “before” clause as a condition that must be
met for permanent residence to be achieved as opposed to a condition that must be met while the
person is resident before she acquires permanent residence. This, however, appears to amount to more

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favourable transposition as it possibly creates a new right to permanent residence and does not impose
a restriction that the Directive imposes on people before they acquire permanent residence.

o Family members who are not EU citizens (Article 12(2))

a. Article 12(2) – right of residence pending permanent residence, after death of

Union citizen

Article 12(2) provides a right of family members to continue to reside in the Member State when the
Union citizen dies. It is envisaged that such family members may reside for long enough to gain the
right to permanent residence. In the time before permanent residence is acquired, however, the family
members must meet one of a number of conditions if their right of residence is to continue. One of
these conditions is “that they are members of the family, already constituted in the host Member State,
of a person satisfying these requirements.” This appears to cover the following situation: a Union
citizen and her non-Union citizen spouse and children move to another Member State. The right of
residence of the family members originally depends on the Union citizen who is working. The Union
citizen dies. The eldest child is now working and meets the other conditions in Article 12(2). In such a
situation, the non-Union citizen spouse retains a right of residence on the basis of being a member of
the family of a person satisfying these requirements.

Article 12(2) is transposed by regulation 9(2)(b) but the last way of qualifying for continuing
residence (i.e., being a family member of a person satisfying the other requirements) has not been
transposed.

b. Article 12(3) – right of children to remain to complete their studies

Article 12(3) provides that children of an EU citizen do not lose their right of residence if the EU
citizen leaves the host Member State or dies. If the remaining or surviving spouse has actual custody
of the children, she has a derivative right to reside also. This continued right to reside arises where
“the children reside in the host Member State and are enrolled at an educational establishment, for the
purpose of studying there, until the completion of their studies.”

This provision has been transposed by regulation 9(3), but this regulation changes the term “until the
completion of their studies” to “until the completion of the course of study”. This term “course of
study” is considerably narrower. It means that, in Ireland, the child loses the right of residence if she
changes from one course of study to another. If a court were to interpret this point without reference to
the Directive, it would be likely to conclude that a course of study ends where a child moves from
primary to secondary education (aged 12), from secondary to third level education (aged 18) and from
undergraduate to postgraduate education. In contrast, Article 12(3) allows a child to continue to reside
until her studies in general are complete. This is incorrect transposition.

• Retention of the right of residence by family members in the event of divorce,

annulment of marriage or termination of registered partnership (Article 13)

Article 13 is similar to Article 12 in that it provides that family members can retain their right of
residence whether there is a divorce, annulment or termination of a civil partnership. Article 13(1) has
been mis-transposed (by Regulation 10(1)(a)) in the same way as Article 12(1). That is, the right of
residence of family members who are EU citizens is limited to an individual and personal basis. The
Directive only allows this limitation to apply to family members who are not EU citizens.

The Irish Regulations again appear to have misinterpreted the “before” clause as a condition that must
be met for permanent residence to be achieved as opposed to a condition that must be met while the
person is resident before she acquires permanent residence. This, however, appears to amount to more

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favourable transposition as it possibly creates a new right to permanent residence and does not impose
a restriction that the Directive imposes on people before they acquire permanent residence.

As Ireland does not (yet) recognise civil partnership as equivalent to marriage, that particular
provision has not been transposed. This is acceptable.

2.3.3 Retention of the right of residence (Article 14)

Article 14 provides for the circumstances in which persons retain the rights of residence granted by
article 6 and article 7 respectively. It is not entirely clear whether article 14 restricts the rights granted
by the earlier article or extends them. This issue has already been addressed in the context of how
Ireland has transposed article 6. Article 14 imposes a number of important restrictions on expulsions.
These have not been transposed.

(a) Residence for less than 3 months (Article 14(1)

See discussion of Article 6 above.

(b) Residence for more than 3 months (Article 14(2)

• Article 14(2) – inquiries into whether persons satisfy residence requirements

Article 14(2) allows Member States to verify whether persons satisfy the various conditions for
residence. However, this verification must not be systematic and can only be undertaken “in specific
cases where is a reasonable doubt”. This provision is transposed by regulation 11(2) in a way that
seems to envisage systematic verification. An onus is imposed on the resident to satisfy the Minister
that she meets the requirements.

Furthermore, regulations 11(3) and 11(4) introduce significant new restrictions on the right of
residence. Regulation 11(3)(b) provides that a family member loses all entitlements if the Union
citizen is required to leave the State. This appears to be in breach of Article 13 which gives certain
rights to reside where the Union citizen leaves the State.

Regulation 11(4) requires the family member to notify certain changes to the registration officer of the
registration district in which she is located. This again appears inconsistent with the fact that article
14(2) prohibits a systematic system of verification.

(c) Protection against expulsion (Article 14(3)-(4)

• General protection (Article 14(3))

Article 14(3) provides that an expulsion measure shall not be the automatic consequence of a Union
citizen’s or her family member’s recourse to the social assistance system of the host Member State.
This provision has not been transposed, but should have been.

• Workers and self-employed persons, and job seekers (Article 14(4))

Article 14(4) provides that an expulsion order may not be adopted against Union citizens or their
family members if the Union citizens are workers or self-employed persons or if the Union citizens
entered the territory of the host Member State in order to seek employment. In this case, the Union
citizens and their family members may not be expelled for as long as the Union citizens can provide
evidence that they are continuing to seek employment and that they have a genuine chance of being
engaged. These provisions have not been transposed into the Irish Regulations, but should have been.

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(d) Article 15(2) – expiry of document not a ground for expulsion and interdiction to impose a ban
on entry (Article 15(3)

Article 15(2) provides that the expiry of the identity card or passport on the basis of which the person
concerned entered the host Member State and was issued with a registration certificate or residence
card shall not constitute a ground for expulsion.

This provision has not been transposed and should have been. Anecdotally, I am informed that expiry
of documents has been invoked as a ground for refusing residence, even where the expiry has occurred
due to a long delay in processing the application for residence. This is a slightly different issue, but
may be worth noting if there is further evidence of it.

Article 15(3) is adequately transposed in that there is no provision authorising a general interdiction on
entry. Regulation 23 allows the Minister for Justice to impose an exclusion order on public security or
public policy grounds. As Article 15(3) only prohibits bans on entry on grounds other than public
security, public policy or public health (by cross-reference with Article 15(1)), this is not problematic.

2.4 Right of permanent residence

2.4.1 General rule for Union citizens and their family members (Article 16: Eligibility)

• Article 16(1) and 16(2) – right of permanent residence after legal residence for five
years

Article 16(1) provides that Union citizens who have resided legally for a continuous period of five
years in the host Member State shall have the right of permanent residence there. This is transposed by
regulation 12(1) which substitutes the phrase “in accordance with these Regulations” for “legally”.
This is clearly incorrect transposition. There are many reasons why a person might have legal
residence in Ireland, other than in accordance with the Regulations. The Directive appears to allow
persons to add together different periods of legal residence for the purposes of reaching the five year
total. A particular problem with the way in which this provision has been transposed is that a person
cannot start to add up the five years prior to the regulations being made (i.e., in April 2006).

The manner in which Ireland has transposed this provision significantly prejudices the aims of the
Directive.

Also note that although regulation 12(1) correctly transposes Article 16(1) of the Directive, it is
possible that regulation 12(1) could be read as subject to the conditions in regulation 6(2)(a). This
would breach the requirement that the right to permanent residence is not subject to the conditions
provided for in Chapter III to the Directive. Accordingly, regulation 12(1) should be amended along
the lines of “Notwithstanding regulation 6.” This would clarify this point.

Article 16(2) makes the same provision in respect of family members and is transposed in the same
incorrect way by regulation 12(1).

2.4.2 Acquisition of the right of permanent residence for workers/self employed

person and their family members (Article 17)

• Article 17(1) – right of permanent residence for persons no longer working

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Article 17(1) provides that the right of permanent residence may be enjoyed before the completion of
the five year period by certain categories of person. This provision is transposed by regulation 13(1) of
the Irish Regulations. However, the transposition is incorrect because what is a substantive entitlement
under the Directive is transposed only as a procedural “right to apply” in regulation 13(1). That is,
regulation 13(1) allows persons to apply to the Minister to seek what they are entitled to under the
Directive; but regulation 13(1) does not actually confer that entitlement on them. This is incorrect
transposition.

However, there is a problem with the transposition of Article 17(1)(b). Article 17(1)(b) provides that
workers or self-employed persons who are rendered permanently incapable for work, shall get the
right to permanent residence if such incapacity is the result of an accident at work or an occupational
disease entitling the person concerned to a benefit payable in full or in part by an institution in the host
Member State.

This provision is transposed by regulation 13(1)(c). However, the word “benefit” is transposed as
“pension”. The difficulty is with the word “pension”. A person injured at work could be entitled to a
general invalidity pension (contributory), a disability allowance (non-contributory) or a short term
illness benefit. The short term illness benefit is de facto permanent in some cases. It is not certain that
workers would have made the necessary contributions to be entitled to the invalidity pension. As such,
they might only be entitled to the disability allowance. As this is not a pension, it is not clear that such
people are covered by Reg 13(1)(c).

There is no doubt but that the courts would iron out this inconsistency. However, Reg 13(1)(c) should
really read “… entitling him or her to a pension, allowance or benefit which is paid in whole or in part
by the State.”

2.4.3 Acquisition of the right of permanent residence by family members who are
not nationals of a MS and retained their right of residence (Article 18)

Article 18 allows family members of EU citizens who retain a right of residence under Article 12(2) or
Article 13(2). This provision has been literally transposed regulation 13.

2.4.4 Documents certifying permanent residence for Union citizens (Article 19)

Article 19 deals with the permanent residence certificate for Union citizens. This has been adequately
incorrectly by regulation 15 of the Irish regulations. Similarly to Article 8(3) of the Directive that
establishes the maximum that Member States may require of the Union citizen with a view to
recognising their right of residence by means of issuing of a registration certificate, Article 19(1) of
the Directive, read in conjunction with Recital 17 to the Directive, specifies the documents to be
presented. The host Member State can require Union citizens to apply for a document certifying
permanent residence and submit evidence showing that they have resided in the host Member State for
a continuous period of five years. The host Member State then checks whether this condition was
complied with and issues the document as soon as possible.

In contrast to that, Article 15(2) of the Regulations and Schedule 4, to which this provision refers,
oblige Union citizens to inform the Irish authorities about particulars which go beyond of what is
foreseen in the Directive but also to submit documents necessary to support such particulars.
The following particulars are contrary to the Directive as they are of no relevance in the process of
ascertaining the duration and continuity of residence:

7. Occupation of applicant in Ireland

8. Duration of employment in Ireland
9. If no longer in employment/self-employment, state reason (e.g. retired, incapacitated,
occupational illness, other)
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 10. Immigration Reference Number, if any, and PPS

However notice that Points 8 and 9 can be relevant only with regard to Union citizens who fall under
Article 13 of the Regulations. These are persons who have acquired the right of permanent residence
according to Article 17 of the Directive) and therefore should be considered in line with the Directive
provided the information is only requested to these persons and not all applicants.

In addition, the application form (see Annex IV – form EU2) requests the applicant to declare details
about his/her immigration history which does not seem in line with the Directive.

The check list includes as document:

• Passport(s) (if applicable)

• National Identity Card (if applicable)
• Letter from Employer
• P60’s
• Evidence of residence
• 2 passport sized photos (of applicant) (signed on back)

A P60 is the document that an employer must give to an employee annually, recording all salary/wage
payments as well as tax and social welfare deductions.

The same comments apply here as in respect of Article 10(2) of the Directive.

2.4.5 Permanent residence card for family members who are not nationals of a MS
(Article 20)

Article 20 similarly provides for the permanent residence certificate for family members who are not
Union citizens. This is incorrectly transposed by regulation 16. Using the same line of argumentation
as for Article 19(1) of the Directive, Article 16(2) of the Regulations and Schedule 6, to which this
provision refers, obliges third country family members to present to the Irish authorities documents
that go beyond of what is foreseen in the Directive.

The following particulars are contrary to the Directive as they are of no relevance in the process of
ascertaining the duration and continuity of residence:

With regard to the applicant:

6. Occupation, if any, of applicant

7. Immigration reference and PPS Number
8. Declaration of any criminal record
9. Immigration history in Ireland
10. Other documentary evidence

With regard to the Union citizen of whom the applicant is a family member/dependant:

16. Occupation of Union citizen in Ireland

17. Immigration Reference Number, if any, PPS Number of Union citizen in Ireland
18. Details of relationship between applicant and Union citizen

The application form (EU3- Annex IV to the Conformity Study) includes as a check list of documents:

• Passport(s) or National ID
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 • Letter from Employer
• P60’s
• Evidence of residence
• Marriage Certificate (if applicable)
• Partnership Certificate (if applicable)
• Birth Certificate’s (if applicable)
• Copy of Work Permits
• 2 passport sized photos (signed on rear)
• 2 passport sized photos of EU citizen (signed on rear)
• Medical evidence (if applicable)

Also, Article 20(1) of the Directive provides that the host Member State must issue third country
family members who have the right of permanent residence with a permanent residence card.
Under Article 5(2) of the Directive, possession of a residence card issued under Article10 of the
Directive exempts the holder from the visa requirement. All the more, possession of a permanent
residence card should also exempt the holder from the visa requirement. It is therefore essential that
the permanent residence card is issued in the form of a card, like the residence card, so the Member
State into which the holder seeks entry can be sure that the card is genuine. The Regulations, however,
provide that the permanent residence card, unlike the residence card, should be issued in form of a
letter from the Minister. This falls short of the requirement of sufficient security of the card and can
imperil recognition of the right to be exempted from the visa requirement.

2.4.6 Continuity of residence (Article 21)

Article 21 provides that continuity of residence may be proven by any means of proof. This has been
adequately transposed by regulation 17.

2.5 Common provisions (Articles 22-26)

2.5.1 Territorial scope (Article 22)

Article 22 provides that the territorial scope of the Directive is the whole of the Member State and that
restrictions on movement may only be imposed where the same restrictions apply to nationals of the
Member State itself. This is correctly transposed by regulation 18(1). However, Ireland has transposed
Article 27 of the Directive in a manner that undercuts Article 22 (see discussion below).

2.5.2 Right to take up employment by family members (Article 23)

Article 23 provides a right for family members who have the right of residence to take up
employment. This was adequately transposed by regulation 18(1)(b) of SI 226/2006. However, as
noted above, SI 226/2006 was repealed and replaced by SI 656/2006 in order to account for the
position of nationals of Bulgaria and Romania. Ireland’s policy decision was not to allow nationals of
Bulgaria and Romania the automatic right to work upon accession, notwithstanding that this right had
been accorded to all nationals of the EU-10 in 2004. The general position is that Bulgarian and
Romanian nationals will be allowed to work once 5 years have passed after the accession date. This
period may be shortened or lengthened to 7 years.

Regulation 18(1) of SI 656/2006 is the only provision of the regulations that has been altered to give
effect to this. Regulation 18(1) transposes Article 22 and Article 23 of the Directive. Regulation 18(1)
has not been altered insofar as it transposes Article 22. However, the manner in which Article 23 has
been transposed is altered. Article 23 provides:

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 Irrespective of nationality, the family members of a Union citizen who have the right of residence
or the right of permanent residence in a Member State shall be entitled to take up employment or
self-employment there.

In SI 226/2006, regulation 18(1)(b) provided:

A person to whom these Regulations apply shall be entitled … (b) notwithstanding anything in the
Employment Permits Act 2003 (No. 7 of 2003), to seek and enter employment, to carry on any
business, trade or profession and to have access to education and training in the State in the like
manner and to the like extent in all respects as Irish citizens,

This essentially exempted persons covered by the Regulations form the requirement to obtain a work
permit, and allowed them to be self-employed and to have access to education and training. The self-
employment and access to education and training provisions are reproduced as regulation 18(1)(c).
That is, the position in that respect is unchanged. However, the situation in respect of employment has
been altered, regulation 18(1)(b) now providing:

A person to whom these Regulations apply shall be entitled … (b) without prejudice to any
restriction on that entitlement contained in the Employment Permits Acts 2003 and 2006, to seek
and enter employment in the State in the like manner and to the like extent in all respects as Irish
citizens,

This reverses the position from what pertained under SI 226/2006. Under SI 226/2006, persons
covered by the Regulations were exempt from the Employment Permits Act 2003. Under SI 656/2006,
persons covered by the Regulations are now covered by the Employment Permits Acts 2003 and 2006.
However, section 3 of the 2006 Act amends the 2003 Act by inserting a new section 2(10), exempting
some foreign nationals from the requirement to obtain a work permit. Insofar as it is relevant to the
current issue, it reads as follows:

(10) Without prejudice to the other provisions of this Act, this section does not apply to a foreign
national …
(c) who is entitled to enter the State and to be in employment in the State pursuant to the
treaties governing the European Communities (within the meaning of the European
Communities Acts 1972 to 2003),…
but this section, subject to section 2A and any order under section 3A(1) for the time being in
force, does apply to a foreign national who is a national of the Republic of Bulgaria or Romania
(including at a time subsequent to the accession of the Republic of Bulgaria or Romania to the
European Union).

Section 2A provides that the requirement to obtain a work permit does not apply to Bulgarian or
Romanian nationals who fall within the second or third subparagraph of paragraph 2 of Annex VI of
the Treaty of Accession with the Republic of Bulgaria and Romania; nor does the restriction apply to
any nationals who fall within paragraph 8 of that annex. Moreover, section 2A also provides that the
restriction on Bulgarian and Romanian nationals will not apply after 5 years after the accession date.
Section 3A allows the Minister for Justice, having regard to the Irish labour market, to lift the
restriction on Bulgarians and Romanians before the 5 year period expires. However, if the Minister
orders the lifting of the restriction early but then at or before 2 months before the end of the 5 year
period revokes the order lifting the restriction (ie re-imposes the restriction), then the restriction comes
into force again and applies for 7 years from the accession date.

The manner in which Regulation 18(1) now deals with the employment of Bulgarians and Romanians
appears to be acceptable. However, it is questionable whether the new subsection 2(10) of the
Employment Permits Act 2003 amounts to clear and adequate transposition of art 23 of the Directive.
A foreign national is only exempted from the requirement to obtain a work permit if she is entitled to
enter the State and to be in employment in the State pursuant to the treaties governing the European
Communities. Accordingly, the exemption from the work permit requirement is not stated clearly in
Irish law, but is instead stated by reference to European Community law. This might have been
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relatively clear if reference had been made to the Directive, but instead the reference is to “pursuant to
the treaties”. This does not appear to be clear transposition.

2.5.3 Equal treatment (Article 24)

Article 24 provides for the principle of equal treatment. This is partially transposed by regulation
18(1)(c) and (d):

18. (1) Subject to the other provisions of these Regulations, a person to whom these Regulations
apply shall be entitled -
(c) to carry on any business, trade or profession and to have access to education and
training in the State in the like manner and to the like extent in all respects as Irish
citizens,
(d) to receive, upon and subject to the terms and conditions applicable to Irish citizens,
the same medical care and services and the same entitlements as those to which Irish
citizens are entitled.

This is the only specific transposition of the equal treatment provision, but there may be other contexts
(apart from carrying on business, having access to education and training, receiving medical care and
services) in which the principle of equal treatment has application.. While this may not be problematic
in respect of EU citizens, given the direct effect of the Treaty, it is problematic in respect of family
members. Given the myriad of circumstances in which the principle of equal treatment might be
violated, it is difficult to assess in the abstract whether Ireland is in breach.

2.5.4 General provisions concerning residence documents (Article 25)

• Article 25(1) – residence card or certificate as precondition for exercise of right

Article 25(1) provides:

Possession of a registration certificate as referred to in Article 8, of a document certifying

permanent residence, of a certificate attesting submission of an application for a family member
residence card, of a residence card or of a permanent residence card, may under no circumstances
be made a precondition for the exercise of a right or the completion of an administrative formality,
as entitlement to rights may be attested by any other means of proof.

This is transposed by regulation 18(3):

A person to whom these Regulations apply may be asked to present a permanent residence
certificate, residence card, permanent residence card, or evidence of an existing application for
such a certificate or card, in order to exercise any entitlement under these Regulations, but failure
to provide such document or evidence may not of itself be used as a reason to refuse a person so
entitled to such entitlement.

In one sense, article 25.1 has been correctly transposed. Regulation 18(3) provides that failure to
provide the documents cannot of itself be used as a reason to refuse a person so entitled to such
entitlement. However, by first stating that a person can be asked for these documents, regulation 18(3)
sends a message to administrators that documents should generally be requested. Also, regulation
18(3) does not explain – in the same way as the Directive – why it is that documents cannot be used as
a precondition.

For these reasons, I consider that transposition on this point has been inadequate. However, this is a
question of interpretation and I can see how another person might take a different view.

• Article 25(2) – charges for documents

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Article 25(2) provides that all documents shall be issued free of charge or for a charge not exceeding
that imposed on nationals for the issuing of similar documents. Ireland has not transposed this
provision. Ireland’s comments to the Commission state that as Ireland does not issue similar
documents to Irish nationals, there is no need to transpose. This is problematic for two reasons. First,
although Ireland does not issue ID cards to its nationals, it may be that a passport is a “similar
document” – at least in the absence of any better comparator. Second, if there is in fact no “similar
document”, it could be argued that Ireland is obliged to issue the documents free of charge. If this is
the correct reading of article 25.2, it should have been transposed.

2.5.5 Checks (Article 26)

Article 26 provides that Member States may have checks to ensure that beneficiaries of the Directive
carry their residence cards in the same way as nationals carry their identity card. As there is no
obligation on Irish nationals to carry any form of identification with them, this provision has not been
transposed in Ireland.

2.6 Restrictions on the right of entry and residence on grounds of public policy,
public security and public health

There is no direct consideration in the Irish case law of the terms “public policy”, “public security”
and “public health” under Directive 2004/38/EC. However, in Kweder v Minister for Justice [1996] 1
IR 301, the High Court considered whether (a) the fact of there being a deportation order in existence
from another Member State or (b) protection of the common travel area between the United Kingdom
and Ireland was a legitimate public policy basis on which the Minister could refuse to allow a spouse
of a worker from another EU Member State residing in Ireland under Regulation 1612/68 and
Directive 68/360/EEC. Geoghegan J rejected these contentions, reasoning that any public policy
exclusion had to be based on the personal circumstances of the applicant, not a blanket policy rule:

I do not intend to deal at any length with the first alleged category of public policy which has been
invoked in this case. If there is such a public policy, in my opinion, it is not a public policy of the
kind contemplated by European Union law and it would be contrary to the entire thrust of the case
law which has been opened in this case to hold otherwise. One has only to look at the facts of this
particular case to deduce that such a public policy could not possibly be invoked against the
applicant. There is no question here of the applicant having committed serious crimes within the
United Kingdom or any kind of subversive conduct. He took up part-time employment which was
a breach of the conditions attached to his visa and it was on these grounds that the Deportation
Order was made. But a person deported from a member state on such grounds may well enter into
a perfectly lawful marriage to somebody who takes up residence and works in another member
state. Unless it could be shown that he was not genuinely intending to reside in the member state
wherein his wife was living or that the marriage was a sham marriage he could not possibly, in my
view, be deprived of his European Union rights by reason merely of the earlier Deportation Order.
In so far as the Minister relies on the first of the two public policies invoked, I must hold that, he
was acting ultra vires European Union law.

The position in relation to the second alleged public policy is altogether different in my opinion. I
accept that the common travel area arrangements as between Ireland and the United Kingdom have
been and are perceived by the general public to be of great advantage to this State. I therefore
accept the submissions made on behalf of the Minister that this public policy is not merely
legitimate but also fundamental. Provided proper regard is had to European Union law such a
public policy is not in any way incompatible with the law and if the granting of a visa would
jeopardise the agreed continuance of the common travel area, it would seem to me that public
policy grounds could be legitimately invoked under European Union law to refuse the visa. A
single or individual instance of back-door illegal immigration into the United Kingdom through
initial entry into Ireland may not threaten the continuance of the common travel area, but an
accumulation of such "back-door entries"would obviously threaten the continuance of the
privilege. For that reason each individual instance of such back-door illegal entry or probable

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 back-door illegal entry is a serious threat to the long term continuance of the common travel area
and it is a legitimate act of public policy to take the necessary steps to prevent each individual
instance of it. It is clear from the case law e.g. Van Duyn v. Home Office [1974] E.C.R. 1337
and Bonsignore v. Stadt Köeln (Oberstadt-direktor) [1975] E.C.R. 297 that public policy can only
be invoked in the context of the personal conduct of the particular individual. As the right to reside
with one's spouse working in a Member State is clearly a fundamental right under European
Community law a public policy defeating it cannot lightly be invoked. To justify a refusal of entry
in a case such as the applicant's it is not sufficient for the Minister or the Department of Justice
merely to harbour a suspicion that the real purpose of the application was to achieve an illegal
entry into the United Kingdom. In my view, the Minister, via her officers in the Department, must
reasonably form the view on evidence before her, that as a matter of probability the application for
the visa is not a bona fide application to reside in Ireland with a lawful spouse but in reality a
device in order to obtain entry into the United Kingdom contrary to the Deportation Order. If for
instance, the Minister was reasonably satisfied on the evidence and documentation before her that
the marriage though lawful was effectively a sham marriage (I am deliberately using the
expression contained in R. v. Immigration Appeal Tribunal, ex p. Secretary of State for the Home
Department (Case C-370/90) [1992] I E.C.R. 4265) then she could draw the inference that as a
matter of probability the application was for the purpose of illegally entering the United Kingdom
and not for the purpose of bona fide residing with the spouse.

I am satisfied that this was not the approach adopted by the Department and that the Department,
even though it did conduct interviews, was essentially influenced by the fact that a Deportation
Order was made in the United Kingdom. The Department appears also to have taken into account
a more general alleged public policy which I have referred to earlier in this judgment and, for the
reasons which I have indicated, this was not correct.

In a slightly different context in CES v Minister for Justice [2006] 2 IR 95, the High Court considered
an argument that the Minister for Justice had made a deportation order against the applicants without
giving adequate consideration to the applicants’ rights under the European Convention on Human
Rights. The case in question was an application for leave to seek judicial review in which the
applicants only had to demonstrate that they had an “arguable case”. Peart J appears to have accepted
the position of the European Court of Human Rights in Boultif v. Switzerland (2001) 33 E.H.R.R.
1179 that a public order expulsion must be “justified by a pressing social need and, in particular,
proportionate to the legitimate aim pursued.”

This suggests that the Irish courts are open to interpreting the public order, security and health
derogations in a reasonably strict way, at least if that is required by a higher legal instrument such as
the ECHR or an EC Directive.
2.6.1 General principles (Article 27)

• Article 27(1) – restrictions on right of residence and entry

Article 27(1) provides that Member States may restrict the freedom of movement and residence of
Union citizens and their family members on grounds of public policy, public security or public health.
Although the substance of this provision has been transposed in different ways throughout the
Directive, regulation 19(3) appears to be Ireland’s attempt at direct transposition. Ireland’s
Concordance Table indicates that the Department of Justice considers regulation 19(3) to be a
transposition of Article 27(1).

The problem is that regulation 19(3) is radically different from Article 27(1). Regulation 19(1) allows
the Minister for Justice to restrict the movement of EU citizens or family members within the State on
the public health, policy or security grounds. The Minister may require such people:

(a) to reside or remain in particular districts or places in the State,

(b) to report at specified intervals to an immigration officer or member of the Garda Síochána
specified in the notice, or
(c) both.
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This has nothing to do with article 27.1 and would appear to be directly in contradiction of the
principle of equal treatment and the principle – in article 29.1 – that public health restrictions can only
apply in respect of “other infectious diseases or contagious parasitic diseases” if they are the subject of
protection provisions applying to nationals of the host Member State. In no circumstances are Irish
nationals, on the grounds of public health, made the subject of the sort of requests listed in regulation
19(3).

• Article 27(2) – proportionality

Article 27(2) requires measures taken on grounds of public policy or public security to comply with
the principle of proportionality and to be based exclusively on the conduct of the individual concerned.
Furthermore, the personal conduct of the individual concerned must represent a genuine, present and
sufficiently serious threat affecting one of the fundamental interests of society. None of these
requirements has been explicitly transposed. In the expert’s view, it is not necessarily the case that the
Irish courts would apply these two requirements as general principles of law. Accordingly, they should
have been transposed.

It is however possible (but far from certain) that a court would impose these requirements in any
event.

2.6.2 Protection against expulsion (Article 28)

Article 28 provides for a number of protections against expulsion decisions. Most of these protections
have been adequately transposed by the Irish Regulations. However, there are two difficulties.

• Criteria to take decisions (Article 28(1))

Article 28 lists factors which may be taken into account when making an expulsion decision.
However, this list is transposed into regulation 20(3)(a) as an exhaustive list.

• Expulsion of minors (Article 28(3)(b)

Article 28(3)(b) provides that Union citizen minors cannot be expelled except on grounds of public
security. However, there is an exception whether the expulsion is “necessary in the best interests of the
child, as provided for in the United Nations Convention on the Rights of the Child of 20 November
1989.” Ireland has transposed this provision in regulation 20(6)(b)(ii) and 20(6)(c). However, these
provisions do not refer to the UN Convention on the Rights of the Child. Ireland has ratified this
Convention but not incorporated it into Irish law.

As a matter of Irish constitutional law, the best interests of children in a marital family are interpreted
very differently from how such interests must be interpreted under the UN Convention. There is a
constitutional presumption that the best interests of the child lie with its marital family or in having all
decisions made for it by its marital family. This presumption has not been directly tested in cases in
which the parents of a child argued that the child’s best interests would be served by being parted from
the parents. Nevertheless, given the Supreme Court’s decision in Lobe v Minister for Justice [2003] 1
IR 1, (in which the Court held that there was no substantive bar on the deportation of the non-national
parents of Irish children) it is conceivable that the courts would presume that a child’s best interests
are nearly always served by being deported with its parents. It is therefore regrettable (and may
prejudice the aims of the Directive) that the Regulations do not specifically refer to the UNCRC
position on best interest.

2.6.3 Public health (Article 29)

• Article 29 and Article 5(1) – public health

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Article 5(1) provides the basic right to enter. This is transposed by regulation 4(1) and 4(2). This
transposition is adequate, except insofar as the regulations refer to public health. Article 27 allows for
refusal of entry on public health grounds. Article 29 provides for a definition of public health, listing
the sorts of diseases that may justify invocation of the public health ground. In one respect, Ireland’s
definition appears to be wider. Article 29(1) refers “other infectious diseases or contagious parasitic
diseases if they are the subject of protection provisions applying to nationals of the host Member
State.” In contrast, Schedule I of the Irish Regulations refers to: “Other infectious or contagious
parasitic diseases in respect of which special provisions are in operation to prevent the spread of such
diseases from abroad.” These phrases are not identical and may allow Ireland to impose more stringent
restrictions than the Directive allows.

• Article 29(3) – medical tests

Article 29(3) allows for a medical test of a newly arrived person where “there are serious indications
that it is necessary”. Such medical examinations may not be required as a matter of routine. This
provision is transposed by regulation 22(3) but it does not impose the same level of restrictions. The
only condition that must be met before a test may be required is that “in the Minister’s opinion in any
particular case it is desirable to do so.” This does not do enough to prevent a routine policy of medical
examinations and therefore is an incorrect transposition of article 29.3.

2.6.4 Expulsion as a penalty or legal consequence (Article 33)

Article 33 provides that an expulsion order cannot be issued as a penalty or a legal consequence of a
custodial penalty, unless the public health, security or policy grounds are met. This provision has been
adequately transposed by regulation 20(1)(d) of the Irish Regulations.

Article 33(2) provides that, if an expulsion is order is to be enforced more than two years after it was
issued, the Member State shall check whether the individual is “currently and genuinely a threat to
public policy or public security”. As this test is drawn from the Court of Justice’s case law, it should
have been transposed properly into Irish law. However, the Irish provision uses the formula “the
circumstances giving rise to the making of the order still exist”. There is a further problem in that “the
circumstances giving rise to the order” could be public health but that is not, under the Directive, a
legitimate basis for continuing the expulsion order.

2.7 Procedural safeguards against decisions restricting free movement (Article 15,
and Articles 30-31)

Article 15(1), Article 30 and Article 31 envisage certain procedural protections that apply when
decisions are taken to restrict the free movement of EU citizens and their family members. Article 15
makes reference to the procedural guarantees actually contained in articles 30 and 31. Some of these
procedural guarantees have been transposed, but there are concerns over the following.

2.7.1 Notifications of the decisions (Article 30)

Article 30(1) provides that persons concerned shall be notified in writing of any decision in such a
way that they are able to comprehend its content and the implications for them. Article 30(1) is
transposed by regulation 20(3)(b), such that where the Minister decides to make a removal order, she
must notify the person in writing where necessary and if possible in a language that the person
understands. There are several concerns over this. First, the obligation to have the notification in a
language which the person understands is limited to where this is “necessary and possible”. In
practice, it seems that people can only apply in English and that all notifications are issued in English.

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Second, it is flagged in the ToC concern that there might be factors other than language which could
constitute a bar to comprehension. However, the notifications are very simple and, provided that the
person understands English, she/he should have no difficulty in understanding the notification.

Third, no attempt is made to apply this requirement to the other decisions under the regulations (apart
from removal orders), as required by Article 15.

Article 30(2) requires that the persons concerned be informed “precisely and in full” of the public
policy, security or health grounds on which the decision is taken. Regulation 20(3)(b) does impose an
obligation on the Minister to state the reasons for the decision. However, case law in Ireland on a duty
to state reasons is generally very weak. In Grealish v. An Bord Pleanála [2006] IEHC 310, O’Neill J
characterised the legal obligation on An Bord Pleanála (the planning appeals board) to state the “main
reasons and considerations” for its decision as “a very light one, one could even say almost minimal”.
This is clearly very different from an obligation to state reasons “precisely and in full”. It is not
necessarily the case that the Irish courts would carry over the jurisprudence from planning law to this
situation. However, given the way in which the courts have generally approached the duty on
administrative bodies to give reasons, Article 30(2) of the Directive should have been explicitly
transposed.

Article 30(3) requires that the notification shall specify the court or administrative authority with
which the person concerned may lodge an appeal and the time limit for the appeal. Neither of these
requirements is transposed, either as regards removal decisions or the other decisions under the
regulations.

2.7.2 Procedural safeguards under Article 31

Article 31(3) requires that the redress procedures shall allow for an examination of the legality of the
decision as well as of the facts and circumstances on which the proposed measure is based. As Article
31(1) refers to judicial and, where appropriate, administrative redress procedures, it seems to follow
that both the administrative redress procedures and the judicial redress procedures must be able to
undertake an examination of the facts and circumstances on which the proposed measure is based.

The problem with transposition in this regard is that Irish administrative law – in general – does not
allow the courts under judicial review to examine the factual basis for a decision. The law was stated
by Finlay CJ in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39. In this case, Finlay C.J., speaking for
the Supreme Court, rejected the applicants’ challenge to a decision on the grounds of irrationality and
in doing so set a high threshold for a claim of irrationality to be made out. It is worth setting out his
reasoning at length:

“It is clear from these quotations that the circumstances under which the court can intervene on the
basis of irrationality with the decision-maker involved in an administrative function are limited
and rare. It is of importance and, I would think, of assistance to consider not only as was done by
Henchy J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 the
circumstances under which the court can and should intervene, but also in brief terms and not
necessarily comprehensively, to consider the circumstances under which the court cannot
intervene.

“The court cannot interfere with the decision of an administrative decision-making authority
merely on the grounds that (a) it is satisfied that on the facts as found it would have raised
different inferences and conclusions, or (b) it is satisfied that the case against the decision made by
the authority was much stronger than the case for it.

“These considerations, described by counsel on behalf of the appellants as the height of the fence
against judicial intervention by way of review on the grounds of irrationality of decision, are of
particular importance in relation to questions of the decisions of planning authorities.

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 “Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed
questions of planning, questions of the balance between development and the environment and the
proper convenience and amenities of an area within the jurisdiction of the planning authorities and
the Board which are expected to have special skill, competence and experience in planning
questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise
discretion with regard to planning matters.

“I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-
making authority has acted irrationally in the sense which I have outlined above so that the court
can intervene and quash its decision, it is necessary that the applicant should establish to the
satisfaction of the court that the decision-making authority had before it no relevant material which
would support its decision.

“As was indicated by this Court in P. & F. Sharpe Ltd. v. Dublin City and County Manager [1989]
I.R. 701, the onus of establishing all that material is on the applicant for judicial review, and if he
fails in that onus he must fail in his claim for review. Accordingly, on the first submission made by
the appellants, on this issue on this appeal, I would hold with them and allow the appeal.

“The entire substantive issue arising on the question of an irrational decision was fully argued,
however, and I am not content to rest my decision in this important case on the question of the
plaintiff's failure to discharge the onus of proof alone.

“Having carefully considered the entire of the contents of the inspector's report in this case, which
was something over 120 pages in length, and having considered the annexed report of Mr. Enders
of the Irish Science and Technology Agency who was specially seconded to the inspector for the
purpose of the oral hearing of the appeal, I am driven to the conclusion that in the recitals of
evidence given before the inspector, which are contained in his report, there is ample material on
all the vital issues concerning this planning decision which would justify the Board in rejecting the
concluding recommendations made by their inspector, notwithstanding the strength and clarity of
those recommendations.” [1993] 1 IR 39, at 71-2.

This is not consistent with the sort of factual review that Article 31(3) requires. Of course, it is again
not necessarily the case that the courts would apply the O’Keeffe judgment to decisions made under
the regulations. However, given the restrictive position generally adopted by Irish law on this issue,
the regulations should have explicitly granted the Irish courts a wider jurisdiction to review the facts
than the courts have generally claimed for themselves.

This difficulty in the sort of review is compounded by the number of occasions on which the Irish
Regulations use the formula “the Minister is satisfied”. This means that a number of entitlements are
subject to the Minister’s satisfaction that a particular state of affairs exists. This would lead an Irish
court to conclude that the factual state of affairs is a matter within the jurisdiction of the Minister: as a
result, the Minister’s decision would only be quashed if his assessment of the facts was unreasonable,
in the sense outlined in O’Keeffe v An Bord Pleanála.

The “is satisfied” formula is used in the transposition of the right of residence under Article 7(2), the
issuing of residence cards under Articles 9(1) and 10(1), the retention of the right of residence under
Articles 12(2), 13(2), granting the right of permanent residence under Articles 19 and 20, restricting
the right of free movement under Article 27, the assessment of whether a person poses a danger to
public health under Article 29, and the assessment of whether a person remains a threat to public
security and policy under Article 33. It is therefore unlikely that there can, under the Irish Regulations,
be proper judicial scrutiny of the factual basis for any of these decisions.

2.7.3 Exclusion orders (Article 32)

Article 32 of the Directive deals with the duration of exclusion orders. A person can apply to have an
exclusion order lifted. This facility has not been properly transposed by the Irish Regulations. The
Directive allows a person to submit an application for a lifting of an expulsion order after a reasonable
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period but, in any event, after three years after it was enforced. However, regulation 23(2) of the Irish
Regulations prohibits such an application being made at all until after three years have passed.

2.8 Final provisions (Chapter VII)

2.8.1 Publicity (Article 34)

This provision has not been transposed and the expert is not aware of any general campaigns and
publicity. However, the website of the Irish Naturalisation and Immigration Service does provide
details on the rights of EU citizens and the dependants of EU citizens, as well as how to apply for
those rights. See [Link] Treaty Rights. This webpage outlines
the rights provided by the Directive and provides links to application forms for a residence card for a
non-EU citizen dependant, a permanent residence card for an EU citizen, and a permanent residence
card for a non-EU citizen. There is also a section on Frequently Asked Questions (FAQs). Recently,
the website has been amended in light of the Metock judgment to indicate that all applicants refused on
the basis of the “lawful residence” requirement will be reconsidered directly under the Directive in the
next three to four months.

2.8.2 Abuse of rights (Article 35)

Article 35 provides:

Member States may adopt the necessary measures to refuse, terminate or withdraw any right
conferred by this Directive in the case of abuse of rights or fraud, such as marriages of
convenience. Any such measure shall be proportionate and subject to the procedural safeguards
provided for in Articles 30 and 31.

This provision has been transposed by regulation 24:

24. (1) Where it is established that a person to whom these Regulations apply has acquired any
rights or entitlements under these Regulations by fraudulent means then that person shall
immediately cease to enjoy such rights or entitlements.
(2) In these Regulations, "fraudulent means" includes marriages of convenience.

The problem with this provision is that the loss of entitlements is made an automatic consequence of
fraudulent means. This suggests that the measure taken is not proportionate as it is taken without any
reference to the facts of the particular case.

Furthermore, these decisions are not made subject to the procedural safeguards of Articles 30 and 31.
The notification requirements of Article 30 are not transposed in respect of this provision. The
decision would be subject to judicial review (as outlined above in relation to the transposition of
Article 31) but this would only allow for review of the procedural legality of the decision, not the
factual merits. It could be argued that regulation 24 is a substantive provision and that the actual
decision would be a deportation decision made under the general immigration legislation. Even if that
is the case, the procedural guarantees of Articles 30 and 31 do not apply fully to deportation decisions,
although there would be some element of notification, it would not meet the stringent requirements of
Article 30. Judicial review of deportation decisions again does not allow for adequate review of the
substantive merits of the decision.

2.8.3 Sanctions (Article 36)

Article 36 allows Member States to lay down sanctions for breach of offences. This is transposed by
regulation 22 which provides that breaches of the Regulations’ provisions will be minor offences,
triable summarily subject to a maximum penalty of €5,000 or one year in prison. This is at the lower
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end of criminal offences in Ireland. In constitutional terms, it is characterised as a “minor offence”
thereby allowing for a trial by a judge sitting alone, rather than a jury. In Ireland, there is no category
of administrative offences and no clear means of imposing penalties other than by way of criminal
offences. It is unlikely that a fine or sentence of imprisonment would be imposed that reached the
statutory maximum. Accordingly, this provision does not appear disproportionate on its face but
District Judges would remain under an obligation to apply penalties in a proportionate manner.

2.8.4 More favourable provisions (Article 37)

This provision has not been transposed.

2.8.5 Transposition (Article 40)

The Directive was transposed into Irish law on 28 April 2006.

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BIBLIOGRAPHY

Nuala Egan and Patricia Brazil, “Asylum and Immigration Law” in Raymond Byrne and William
Binchy eds, Annual Review of Irish Law 2004 (Round Hall Thomson, 2005)

Nuala Egan and Patricia Brazil, “Asylum and Immigration Law” in Raymond Byrne and William
Binchy eds, Annual Review of Irish Law 2005 (Round Hall Thomson, 2006)

Nuala Egan and Patricia Brazil, “Asylum and Immigration Law” in Raymond Byrne and William
Binchy eds, Annual Review of Irish Law 2006 (Round Hall Thomson, 2007)

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Milieu Ltd & Conformity Study Directive 2004/38/EC for Ireland 2008 48/65
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ANNEX I: Table of concordance for Directive 2004/38/EC

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ANNEX II: List of relevant national legislation and administrative acts

SI 226/2006 European Communities (Free Movement of Persons) Regulations 2006

SI 656/2006 European Communities (Free Movement of Persons) (No 2) Regulations 2006

[This is the principal transposing instrument. All references in the TOC are to these Regulations unless
otherwise stated.]

SI 227/2007 (since amended by SI 657/2006)

Immigration Act 1999, section 1
Employment Permits Act 2003
Employment Permits Act 2006
Immigration Act 2004, section 17
Social Welfare (Consolidation) Act 2003, Part III
Immigration Act 2003, section 1
Immigration Act 1999, section 1

The Acts of the Oireachtas are all available on [Link]. In Ireland, publication and
collection of statutory instruments is more erratic. SI 656/2006 and SI 657/2006 are available at
[Link] . The two earlier instruments (now revoked) do
not appear to be available on any public access website. For the purposes of this study, they were
accessed at [Link], a subscription service.

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ANNEX III: Selected national case law

[Link]
[Link]

Judgment Title: S.K. & Anor -v- Minister for Justice Equality & Law Reform & Ors

Neutral Citation: [2007] IEHC 216

High Court Record Number: 2006 758 JR

Date of Delivery: 28/05/2007

Court: High Court

Composition of Court: Hanna J.

Judgment by: Hanna J.

Status of Judgment: Approved

Neutral Citation Number: [2007] IEHC 216

The High Court

Judicial Review
[2006 No 758 JR]
Between/
S. K. and T.T.
Applicants
and
The Minister for Justice, Equality and Law Reform and
Ireland and the Attorney General
respondents

Judgment of Mr. Justice Hanna delivered on the 28th day of May, 2007

This is an application for judicial review on behalf of the applicants to whom leave to bring this
application was granted in the form of the amended statement of grounds. The said leave was obtained
from Finlay Geoghegan J. on the 31st July, 2006.
The first named applicant claims that he has a right of residency in this jurisdiction, being married to
an EU citizen who is resident and working in Ireland. The applicants complain that the instrument
under which the first named applicant’s right of residency was refused, The European Communities
(Freedom of Movement of Persons) Regulations 2006, S.I. No. 656/2006, is ultra vires Directive
2004/38/EC which deals with the rights of citizens of the European Union and their family members to
move and reside freely within the territory of the Member States. Specifically, the applicants contend
that the requirement in the said Regulations, that a spouse or family member who is a national of a
non-EU state be lawfully resident in another Member State before entering Ireland either with or
without a view to joining a spouse who is a national of another EU state, goes beyond the provisions
of the Directive to such extent as would require primary legislation to be enacted into law. Further, the
applicants argue, in the given circumstances of S.K.’s case, refusal of the right of residency and his
removal from the State to the Kingdom of Belgium is contrary both to their respective rights under the
Irish Constitution and under the European Convention of Human Rights and Article 8 thereof in
particular.
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The first named applicant is a citizen of India. The second named applicant is a national of Estonia, a
Member State of the European Union. The applicants were married in this State on 18th May, 2006,
having been in a relationship, according to the applicants, since 2003. Unsurprisingly, the description
of the applicants’ prior relationship is not challenged since it occurred mostly out of the jurisdiction.
Further, no issue has been raised with regard to the validity in legal terms of the marriage.

Background facts
The relevant history of the case is as follows. Whilst still a minor aged fifteen, the first named
applicant applied for asylum in Belgium and was refused. He then somehow or other entered the
United Kingdom and resided there illegally for a period of approximately three years. It was during
this time, we are told, that the relationship between the applicants grew. According to applicants’
solicitor, Mr. Derek Stewart, who swore an affidavit on behalf of and on the instructions of the
applicants, the applicants formed an intention to marry when in the United Kingdom and he was
instructed that some contact was made with the Home Office in the UK on their behalf, seeking
permission for their marriage. Mr. Stewart in para. 6 of his affidavit sworn on 27th June, 2006, says as
follows:-
“It seems that in frustration with the length of time it was taking to regularise their position and
formalise their marriage, the applicants travelled to Ireland in or about January, 2006, with the
intention of the second named applicant finding employment in the State, formalising their marriage
and setting up their family home here.”
What the difficulties and delays were in the United Kingdom are not specified. Nor is any single item
of correspondence to or from the British Home Office exhibited. Nor is there any evidence that the
frustration which they felt caused them to visit a solicitor to enquire as to the reason for the alleged
delay and possible steps to do something about it.
In any event, the applicants then entered this State, set up home here and an asylum application was
made by the first named applicant on 15th February, 2006. I should observe at this point (and I will
return to it later) that, in his application for asylum, he made no reference to his unsuccessful
application for asylum in Belgium or the fact that he was illegally resident in the United Kingdom for
a period of three years prior to coming to this State.
Upon applying for asylum in this jurisdiction, he was given an information leaflet which advised him,
inter alia, that he could make written representations to the Refugee Applications Commissioner. This
particular leaflet was a leaflet presented to applicants for such status, informing them of their various
rights. It is not in issue that the applicant was aware that he could have his case examined did he wish
to do so.
Thereafter, the applicants say that they set up home together and the second applicant secured
employment at a service station in the midlands prior to their marriage on 18th May, 2006.
This, according to the respondents, was part of the applicants’ overall plan to circumvent the
immigration laws of this State. The first named applicant was a person who would in ordinary
circumstances require a valid visa to enter the State. It was the applicants’ intention and understanding
that their marriage would obviate the need for an asylum application because the first named applicant
would then have the status of a spouse from a non-Member State of a national of a Member State of
the EU and would thus be entitled to residency in Ireland.
In the meantime, the first named applicant’s fingerprints, which had been taken when he arrived in this
country, were checked by means of a Eurodac search and this revealed that the first named applicant
had previously applied for asylum in Belgium. The Irish immigration authorities then made a take
back request to Belgium on 2nd May, 2006. A letter from the Belgian authorities dated 31st May,
2006, indicated that the Belgian authorities were agreeable to taking the first named applicant back,
pursuant to Article 16(1)(e) of the Council Regulation (EEC) No. 343/2003. This Article provides
that:-
“The Member State responsible for examining an application for asylum under this Regulation shall be
obliged to: … take back … a third country national whose application it has rejected and who is in the
territory of another Member State without permission.”
Mr. Stewart tells us that the applicants proceeded to lodge papers with the first named respondent, for
the purpose of mounting an application for residency on the basis of their marriage and the fact that
the second named applicant was an EU national who was employed in the State. The applicants
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instructed Mr. Stewart that their original marriage certificate, original birth certificates with
translations, a copy extract from the first named applicant’s passport and a copy of the second named
applicant’s passport were delivered by hand to the first named respondent’s offices at 13-14 Burgh
Quay, Dublin 2, in early June, 2006.
By letter of 2nd June, 2006, the first named applicant was advised that the office of the Refugee
Applications Commissioner had determined that Belgium was the country responsible for dealing with
his application for asylum pursuant to the provisions of the Dublin Convention known as “Dublin II”.
Article 8 of that Convention provides that:
“Where no Member State responsible for examining the application can be designated on the basis of
the other criteria listed in this Convention, the first Member State with which the application for
asylum was lodged shall be responsible for examining it.”
The first named applicant was duly notified of the determination to transfer him to the Kingdom of
Belgium. He did not challenge this determination and a transfer order dated 14th June, 2006, was
made transferring him to Belgium. A letter of 20th June, 2006, informed the applicant of the making
of the transfer order and requesting his attendance at the Garda National Immigration Bureau on 26th
June, 2006, to make arrangements for his removal from the State.
In the meantime, the first named applicant had written to the office of the Refugee Applications
Commissioners by letter dated 15th June, 2006, which said letter was received on 19th June, 2006.
The letter states as follows:-
“Re: Withdrawal of my application for asylum.
Your Ref: 69/398/06
To whom it may concern,
I am writing (sic) my application for asylum in this State. I have married an EU national and made an
application for a resident’s card as a non-EEA family member.
Will you kindly acknowledge receipt of this letter?
Yours faithfully
S.K..”
Up to this point the applicants had no legal representation in the State. The second named applicant
had, of course, the same rights as any other EU citizen to reside and work in this State. As for the first
named applicant, he brought his presence to the attention of the authorities by applying for asylum,
albeit that this had the effect of maintaining him in the State while his asylum application was being
processed. However, serious questions arise with regard to a significant shortfall in terms of openness
of disclosure and truthfulness in his application, to which I shall return.
The first named applicant sought legal advice and this he received from Mr. Stewart, who wrote a
letter on 23rd June, 2006, which, Mr. Stewart tells us, was delivered by hand to the first named
respondent’s office. It informed the said respondent that the first named applicant had abandoned his
claim for asylum and was applying for residency on the basis of his marriage to an EU national. Mr.
Stewart contended, that the issue of the first named applicant’s removal for the purpose of an
examination of a claim that no longer existed was redundant. Mr. Stewart invited the authorities to
inform either himself or his client that it was no longer necessary for the first named applicant to
attend at the Garda Immigration Bureau Headquarters as had been requested of him. Mr. Stewart
advised his client that it would be unlikely that there would be any attempt to enforce the transfer
order. He was re-enforced in this belief in that the first named applicant had fourteen days within
which to bring an application for judicial review from the date of the communication of the transfer
order and that this time had not yet run. There was no reply to Mr. Stewart’s letter.
By letter dated the 26th June, 2006, a complete application for residency on the basis of marriage to an
EU national was submitted to the first named respondent.
When the first named applicant attended at the Garda National Immigration Bureau he was arrested
and detained and brought to Cloverhill Prison. He was subsequently released consequent upon an
application for injunctive relief which was heard and ordered by Murphy J. on 28th June, 2006.
By letter dated 7th July, 2006, which the first named applicant says he received on 12th July, 2006,
S.K. was advised that his application for residency on the basis of marriage to an EU citizen working
within the State had been unsuccessful. The reason given for this decision was that he had not
submitted evidence that he had been lawfully resident with his spouse in another EU Member State
before coming to Ireland.
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The order of Murphy J. was made on 28th June, 2006, and was returnable for Monday 3rd July, 2006,
in the asylum list. On the return date the first named applicant was released pursuant to an order under
Article 7(9) of the Refugee Act (s. 22) Order, 2003 (S.I. No. 423/2003), and the interim injunction was
continued on consent pending further order. An application was then made to amend proceedings and
to join Ireland and the Attorney General following the decision made by the first named respondent to
refuse the application for residency. An order granting leave on foot of the amended statement of
grounds was made by Finlay Geoghegan J. on 31st July, 2006. Opposition papers were filed in
October, 2006.
In an affidavit filed in reply to the affidavits sworn by Mr. Stewart and the first named applicant, Mary
Sayers of the EU Treaty Rights Section expresses the view that the applicants set about an elaborate
plan with a view to thwarting or bypassing the immigration law of this country. It is alleged that the
application for asylum was in the nature of a holding operation. The first named applicant had
previously resided in the United Kingdom for a period of approximately three years. When he applied
for asylum on the 15th February, 2006, he was provided with an information leaflet for applicants for
refugee status in Ireland which contained information on the effects of Council Regulations No.
343/2003. The applicant was informed by this leaflet that it was open to him to make written
representation to the Refugee Applications Commissioner on the possibility that his case might be
examined under the Regulations. He chose not to do so.
Ms. Sayers identifies what would appear to be significant shortcomings in terms of truthfulness and
openness on the part of the first named applicant in his application form.
(i) He did not disclose his previous application for asylum in Belgium nor the fact that he subsequently
resided illegally in the United Kingdom for a period of approximately three years.
(ii) He stated that he never travelled outside his country of origin before, which is clearly untrue.
(iii) He stated that himself and the second named applicant first came to Moscow, then Belarus and
after that he did not know how he was brought into this country.
(iv) He goes on to say that he left his country of origin (India) on 16th January, 2006, something that is
manifestly untrue.
(v) He says that he did not apply for refugee status before, which is again untrue.
(vi) He says that he never lived in any other country other than his country of origin, which is untrue.
(vii) In a further form known as the ASY 1 form, he states that he travelled from India to Moscow to
Belarus via an unknown destination to Ireland and that he had left on 16th January, 2006. Again, this
is clearly untrue.
Ms. Sayers points out that once the first named applicant’s application for asylum was to another
Convention country, it was deemed withdrawn in Ireland by operation of law. Further, she points out
that the first named respondent was not aware of the relationship between the first and second named
applicants before making the transfer order to Belgium. The respondent was only informed of the fact
of the marriage by letter dated 15th June, 2006, and received on 19th June, 2006, after the transfer
order had been made. The letter was addressed to the office of the Refugee Appeals Commissioner but
the matter was then being dealt with by the repatriation unit.
Findings
No oral evidence was heard in this case. I must therefore make my findings based solely on affidavit
evidence including the uncontradicted affidavit of Ms. Sayers. It seems probable that the intention of
the applicants has at all material times been to avoid or by-pass the provisions of Irish immigration
law with a view to obtaining for the first named applicant a right of residency as the spouse of a citizen
of a Member State of the European Union. I am satisfied that in order to achieve this end, the first
named applicant engaged in deceitful and dishonest behaviour to the extent of lying about how he
came to Ireland, lying about his personal circumstances, and concealing from the authorities, his failed
attempt to obtain asylum in Belgium some three years previously.
It seems improbable that the second named applicant was not aware of the deceit in which the first
named applicant was engaged.
However, it must be pointed out that no case was made that the marriage entered into between the
applicants was other than a valid marriage. Expressly, it is not alleged that this was a marriage of
convenience.
Such is the factual background against which this case must be considered.

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Regulatory framework
One of the fundamental tenets of the European Union in general and of the Internal Market in
particular is the free movement of persons. This began with the free moment of workers. As a
consequence, broadly speaking, citizens of European Union Member States and their families have the
same access to the labour market in any other Member State as the citizens of that State. The right to
free movement of workers is enshrined in Council Regulation (EEC) No. 1612/68 on the free
movement of workers within the Union. Under this regulation, family members of EU citizens enjoy
free access to the labour market, regardless of their nationality.
The following are regarded as family members having free access to the labour market:
(i) A spouse or registered partner;
(ii) A child under the age of 21;
(iii) A child of the spouse of an EU citizen, where this child is under the age of 21;
(iv) A parent of an EU citizen, where this citizen is under the age of 21;
(v) A dependent relative in an ascending or descending line;
(vi) A dependent relative of the spouse of an EU citizen in an ascending or descending line;
(vii) A person living with an EU citizen in a common household;
(viii) A person who, for health reasons, is unable to look after himself without the personal care of the
EU citizen.
Article 1(1) of Regulation (EEC) No. 1612/68 of the Council of 15th October 1968 on Freedom of
Movement for Workers within the Community (OJ, English special Edition 1968 (II), p. 475
provides:-
“Any national of a Member State, shall, irrespective of his place of residence, have the right to take up
an activity as an employed person and to pursue such activity, within the territory of another Member
State in accordance with the provisions laid down by law, regulation or administrative action
governing the employment of nationals of that State.”
Article 10 provides:-
“(1) The following shall, irrespective of their nationality, have the right to install themselves with a
worker who is a national of one Member State and who is employed in the territory of another
Member State: (a) his spouse and their descendants who are under the age of 21 years or are
dependants; (b) dependent relatives in the ascending line of the worker and his spouse.
(2) Member States shall facilitate the admission of any member of the family not coming within the
provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the
country whence he comes.
(3) For the purposes of paragraphs 1 and 2 the worker must have available for his family housing
considered as normal for national workers in the region where his is employed; this provision,
however must not give rise to discrimination between national workers and workers from the other
Member States.”
More recently, the European Parliament and the Council have adopted new legislation, namely
Directive 2004/38/EC. This Directive amended Regulations (EEC) 1612/68 and repealed Directives
64/221/EEC; 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC,
90/365/EEC and 93/96/EEC. The aim of the Directive appears to be to simplify the formalities for
Union citizens and their family members to exercise and enjoy the right of free movement and
residence irrespective of the nationality of the spouse or family member. There are some limits in
place on the right of free movement where grounds of public policy, public security or public health
arise.
The Directive embodies the right of Union citizens with a valid identity card or passport and their
family members who are not nationals of a Member State and who hold a valid passport to leave the
territory of a Member State to travel to another one and to enter its territory. No exit visa or equivalent
formality may be imposed on the Union citizens and their family members. The Directive goes on,
inter alia, to provide various rules affecting Union citizens and family members who are Union
citizens themselves on the one hand and family members who are not nationals of a Member State on
the other.
Who fulfils the definition of a family member? Further, who is intended to receive the benefit of the
Directive? Articles 2 and 3 of the Directive respectively state as follows:-
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“Article 2.
Definitions
1. “Union citizen” means any person having the nationality of a Member State;
2. “Family member” means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the
legislation of a Member State, if the legislation of the host Member State treats registered partnerships
as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of
the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or
partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partners as defined in
point (b).
3. “Host Member State” means the Member State to which a Union citizen moves in order to exercise
his/her right of free movement and residence.
Article 3.
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than
that of which they are a national, and to their family members as defined in point 2 of Article 2 who
accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in
their own right, the host Member State shall, in accordance with its national legislation, facilitate entry
and residence for the following persons;
(a) any other family members, irrespective of their nationality, not falling under the definition in point
2 of Article 2 who, in the country from which they have come, are dependants or members of the
household of the Union citizen having the primary right of residence, or where serious health grounds
strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and
shall justify any denial of entry or residence to these people.”
I will return later to consider whether or not the first named applicant is an intended beneficiary of this
Directive. The second named applicant, of course, is a member of an EU State and is entitled to
remain here. The above Directive came into force the day of its publication in the Official Journal of
the European Union, that being 30th April, 2004, and the Member States were required to transpose it
by 30th April, 2006. With a view to enforcing the provisions of the Directive, the Minister for Justice,
Equality and Law Reform acting under the powers conferred upon him by s. 3 of the European
Communities Act 1972, made regulations entitled The European Communities (Free Movement of
Persons) Regulations, 2006, (S.I. No. 226/2006) which came into effect at the end of April, 2006.
Among the matters of controversy between the parties are the provisions of Regulations 3(1) and (2).
They provide as follows:
“3. (1) These Regulations shall apply to-
(a) Union Citizens,
(b) subject to paragraph (2), qualifying family members of Union citizens who are not themselves
Union citizens and
(c) subject to paragraph (2), permitted family members of Union citizens.
(2) These Regulations shall not apply to a family member unless the family member is lawfully
resident in another Member State and is-
(a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a
family member, or
(b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully
present in the State.”
These provisions ground the refusal on the part of the first named respondent to grant residency to the
first named applicant.
The applicants seek to impugn this Regulation upon the grounds, inter alia, that it does not truly
transpose the Directive into Irish law. It is argued that the 2004 Directive contains no provision which
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would require, inter alia, that the first named applicant should lawfully be resident in another Member
State prior to seeking to enter the State in the company of the second named applicant or seeking to
join the second named applicant. The Directive is wholly silent in this regard, it is argued. The
applicants argue that the Directive has not been properly transposed and there is no legal basis in
accordance with Article 15(2) of the Constitution for said Article 3(2) of the Regulations and that the
provision is ultra vires the first named respondent. The respondents, on the other hand, argue that S.I.
No. 226/2006 does correctly transpose EU law into domestic law and this could properly be done by
secondary legislation.
Perhaps I should briefly set out the legislative framework whereby the EU Directives are transposed
into Irish law.
The S.I. No. 226/2006 was introduced by the first named respondent.
Vires of the Transposing Regulation
Article 15 (2) of the Constitution of Ireland, 1937, provides that:-
“1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no
other legislative authority has power to make laws for the State.
2 Provision may however be made by law for the creation or recognition of subordinate legislatures
and for the powers and functions of these legislatures.”
Article 29, s. 4, sub-s. 10 of the Constitution of Ireland, 1937, provides:-
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the
State which are necessitated by the obligations of membership of the European Union or of the
Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by
the Communities or by institutions thereof, … from having the force of law in the State.”
Article 189, para. 3 of the European Economic Community Treaty, 1957, (now Article 249 EC)
provides:-
“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is
addressed, but shall leave to the national authorities the choice of form and methods.”
The 2006 Regulations were introduced by the first named respondent in exercise of powers conferred
by section 3 of European Communities Act 1972 (hereafter "the Act of 1972") for the purpose of
giving effect to the Directive.
Section 2 of the said Act provides that:-
“From the 1st day of January, 1973, the treaties governing the European Communities and the existing
and future acts adopted by the institutions of those Communities shall be binding on the State and
shall be part of the domestic law thereof under the conditions laid down in those treaties.”
Section 3 provides, inter alia, that:
“(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential
provisions as appear to the Minister making the regulations to be necessary for the purposes of the
regulations (including provisions repealing, amending, or applying, with or without modification,
other law, exclusive of this Act).”
The respondents contend, contrary to what is asserted on behalf of the applicant’s, that S.I. No.
226/2006 does derive from Directive 2004/38/EEC. That Directive was binding on the State from the
moment it was adopted, as to the result to be achieved, and which, in the event of conflict, took
precedence over domestic law. Relying on Meagher v. Minister for Agriculture [1994] 1 I.R. 329, it is
submitted that the measures incorporated in the Statutory Instrument are required to implement the
Directive or what was incidental or supplementary thereto, or consequential thereupon. The
respondents pointed to the case of Secretary of State for the Home Department v. Hacene Akrich
C/109/01, a decision of the European Court of Justice. Shortly before this matter was heard, the Court
of Justice handed down a judgment in the case of Yunying Jia v. Migrationsverket (Migrations) (case
C-1/05). Mr. Shipsey S.C. on behalf of the applicants and Miss Moorehead S.C. on behalf of the
respondents referred liberally to the opinion of Advocate General Geelhoed in the Jia case as
identifying what would appear to be some inconsistencies in decisions of the Court of Justice
represented by what he perceived to be a restrictive approach in the Akrich case to a more generous
approach in other decisions. I think I may usefully adopt extracts from the Advocate General’s opinion
in the Jia case:-

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“38. As indicated above, the Court’s caselaw in this field is not entirely free from ambiguity. The
Court has adopted both a generous and a restrictive approach to the conditions under which the rights
granted in secondary Community legislation to third-country-national family members of Community
citizens can be involved.
39. The generous approach was displayed in MRAX, where the Court stated that the right of a third-
country national, married to a Member State national, to enter the territory of the Member States
derives under Community law from the family ties alone. Although pointing out that Article 3(2) of
Directive 68/360 and Article 3(2) of Directive 73/148 permit the Member States to make the exercise
of this right conditional on the possession of a visa (which is defined as an authorisation given or a
decision taken by a Member State required for entry to its territory,) it observed that these same
provisions require the Member States to grant the persons concerned every facility for obtaining the
necessary visas. A policy of a Member State to send back at its borders a third-country-national spouse
of a Community citizen who attempts to enter its territory without being in possession of a valid
identity card, passport or a visa, where he is able to prove his identity and the conjugal ties and where
there is no evidence to establish that he represents a risk to the requirements of public policy, public
security or public health violates, inter alia, Article 3 of Directive 68/360 and Article 3 of Directive
73/148, read in the light of the principle of proportionality. Next, the Court ruled that on a proper
construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not
permitted to refuse issue of a residence permit and to issue an expulsion order against a third-country
national who is able to furnish proof of his identity and of his marriage to a national of a Member State
on the sole ground that he has entered the territory of the Member State concerned unlawfully.
40. This ruling contrasts sharply with the Court's judgment in Akrich, in which it followed a more
restrictive approach. This case involved a Moroccan national who had been unlawfully resident in the
United Kingdom, had committed a number of criminal offences during his stay and, consequently, had
been deported. Mr Akrich returned illegally to the United Kingdom, and married a British woman.
After having worked in Ireland for six months, the couple attempted to return to the United Kingdom,
invoking the rights granted to the spouses of Community workers by Article 10 of Regulation No
1612/68, as interpreted by the Court in Singh. Here, the Court emphasised that Regulation No 1612/68
covers only freedom of movement within the Community and that it is silent as to the rights of a
national of a non-Member State, who is the spouse of a citizen of the Union, in regard to access to the
territory of the Community. In order to benefit, in a situation such as that at issue in the main
proceedings, from the rights provided for in Article 10 of Regulation No 1612/68, the national of a
non-Member State, who is the spouse of a citizen of the Union, 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.
41. However, in Commission v Spain, which was decided more than a year after Akrich, in considering
Spanish formalities to be complied with by third-country-national family members of migrant
Community citizens prior to being able to apply for a residence permit, the Court again adopted the
approach followed in MRAX. It repeated that the right to enter the territory of a Member State by a
third-country-national who is the spouse of a national of a Member State derives from the family
relationship alone. It concluded that a residence visa requirement imposed by Spanish legislation as a
precondition for obtaining a residence permit and a refusal to issue such a permit to a third-country
national who is a member of the family of a Community national, on the ground that he or she should
first have applied for a residence visa at the Spanish consulate in their last place of domicile,
constitutes a measure contrary to the provisions of Directives 68/360, 73/148 and 90/365. The Court
did not refer to Akrich in its judgment.
42. There is, therefore, an apparent contradiction in the caselaw which results from the divergent
approaches in MRAX and Commission v Spain, on the one hand, and Akrich, on the other hand. And,
indeed, it is this difference in approach which prompted the Utlänningsnämnden to refer the case to
the Court.
43. The basic question raised by Akrich is whether the rule laid down in that judgment only applies
when it has been established by the national authorities that the third-country national concerned is
unlawfully resident on the territory of a Member State. This would suggest that the rule applies not
only when a person is legally resident, but even when the person is not unlawfully present on the
territory of a Member State. In that case, following the MRAX approach, the family relationship with a
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migrant EU citizen would suffice to establish the right to enter and reside in a Member State.
44. This narrow reading of Akrich could be based on paragraph 50 of the judgment, where the Court
explicitly refers to 'a situation such as that at issue in the main proceedings' as the context in which this
rule applies. A pointer in the opposite direction, however, is its observation in the preceding paragraph
in the judgment, where the Court states unequivocally that the relevant Community provisions only
relate to freedom of movement within the Community and that they are silent in respect of admission
to the territory of the Community.
45. In the light of these observations, it is fair to conclude that the law as it stands today in respect of
the conditions under which third-country national family members of migrant EU citizens may invoke
the rights granted to them by Regulation No 1612/68 and Directive 73/148 does not appear to be
wholly consistent.
…
50. In Akrich, the Court first determined that a third-country national who is the spouse of a citizen of
the Union who has exercised her right to free movement, but who is not lawfully resident in his
spouse's Member State of origin, cannot invoke Article 10 of Regulation No 1612/68 to claim a right
of residence in that Member State. Nevertheless, it qualified that judgment by pointing out that where
the marriage is genuine, in deciding on whether to admit the third-country national concerned, despite
his unlawful status under national immigration law, regard must be had to respect for family life under
Article 8 of the ECHR. ‘Even though the [ECHR] does not as such guarantee the right of an alien to
enter or to reside in a particular country, the removal of a person from a country where close members
of his family are living may amount to an infringement of the right to respect for family life as
guaranteed by Article 8(1) [ECHR]. Such an interference will infringe the [ECHR] if it does not meet
the requirements of paragraph 2 of that article ... .’ Here, the Court adopted a more reticent approach
than in Carpenter by leaving it to the national court to apply this test.
51. Finally, I would refer to the Court's judgments in MRAX and Commission v Spain, where it
repeated its observation in Carpenter that it is apparent in particular from the Council regulations and
directives on freedom of movement for employed and self-employed persons within the Community
that the Community legislature has recognised the importance of ensuring protection for the family life
of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental
freedoms guaranteed by the Treaty.
52. Having concluded at the end of the previous section that there is a certain degree of inconsistency
in the caselaw regarding the law applicable to third-country-national family members of migrant
Community citizens, the preceding observations suggest, in addition, that the outcome of these cases is
to a large extent determined by the particular facts of each case. In an area such as immigration where
decisions taken by the competent authorities affect the lives of individuals in a most fundamental
manner, there is, however, a great need for clarity as to the scope of rights and predictability as to the
manner in which the law is applied. In order to create greater transparency and to promote legal
certainty, a more systematic and structural approach to the interpretation and application of the
relevant Community provisions is required.”
The Advocate General goes on to identify the precise problem with which we are dealing with here.
He identifies what, in effect, is the proposition advanced on behalf of the applicant and the pitfalls
which such an approach would present from the respondents viewpoint.
“67. To accept that third-country nationals who are not already lawfully resident within a Member
State and who wish to join a national of a Member State who has exercised his freedom of movement
enjoy an automatic right to enter and reside within the host Member State on the basis of the family
relationship alone, without any intervention on the part of that Member State, would make it possible
for them to circumvent national immigrations laws. Such an approach, therefore, undermines the
Member States’ powers in respect of controlling immigration at their external border.”
In the words of counsel for the respondent, the Advocate General “put it up” to the Court of Justice to
determine the issue.
In its judgment, the court said at paras. 28 to 33 inclusive:-
“28. In order to answer that question, it is helpful to recall the facts Akrich’s case.
29. The referring court in that case was seised of an action against the refusal of the United Kingdom
authorities to grant a residence permit to Mr Akrich, a national of a non-Member State married to a
United Kingdom national. Mr Akrich did not have the right of residence in the United Kingdom and
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he had agreed to be deported to Ireland where he joined his wife who had installed herself there
shortly before. The couple intended to return to the United Kingdom by taking advantage of
Community law so that Mr Akrich could enter that country as the spouse of a citizen of the Union who
had exercised her right to free movement.
30 It was in the light of that situation that the referring court asked the Court of Justice what measures
the Member States were entitled to take in order to combat steps taken by members of the family of a
Community national who did not meet the conditions laid down by national law for entry and
residence in a Member State.
31 In the case in the main proceedings, it is not alleged that the family member in question was
residing unlawfully in a Member State or that she was seeking to evade national immigration
legislation illicitly. On the contrary, the applicant was lawfully in Sweden when she submitted her
application and Swedish law itself does not preclude, in a situation such as that in the main
proceedings, the grant of a long-term residence permit to the person concerned, provided that
sufficient proof of financial dependence is adduced.
32 It follows that the condition of previous lawful residence in another Member State, as formulated in
the judgment in Akrich, cannot be transposed to the present case and thus cannot apply to such a
situation.
33 The answer to Question 1(a) to (d) must therefore be that, having regard to the judgment in
Akrich’s case. Community law does not require Member States to make the grant of a residence permit
to nationals of a non-Member State, who are members of the family of a Community national who has
exercised his or her right of free movement, subject to the condition that those family members have
previously been residing lawfully in another Member State.”
It appears, therefore, that the Court in Jia is at pains to distinguish the facts of that case from the facts
in Akrich, emphasising, importantly, the lawfulness of Ms. Jia’s presence in Sweden and the fact that
she was not seeking to evade national immigration laws. The approach of the Court in the Akrich case
cannot be transposed into the Jia case and cannot apply to such a situation. The court did not seek to
disturb the approach of the court in Akrich or demur from it having regard to its particular factual
background.
It seems to me that neither can the circumstances surrounding the present application fit the
circumstances in the Jia case. Therefore, for the purposes of dealing with this application, the Jia
decision should be left to one side. The facts of Akrich bear close resemblance to this application and
it seems to me that the appropriate manner in which this application should be viewed would be to
follow the view of the Court as enunciated in the Akrich decision.
As already noted, Mr. Akrich, a national of Morocco, was married to a citizen of the United Kingdom
who was working in Ireland. He was deported from the United Kingdom to Ireland at his request. The
case was considered under Regulation 1612/68. The issue was whether he would be entitled under that
Regulation to return to the United Kingdom after a period of months on the basis that he was now
married to an EU national.
When the matter was opened to me, the applicant’s argument proceeded on what appeared to be a
supposition that the marriage between Mr. Akrich and his wife was one of convenience. This was not
the case either in the Akrich case nor is there any suggestion that such is the nature of the marriage
between the applicants in this case. The court ruled as follows:-
“1. In order to be able to benefit in a situation such as that at issue in the main proceedings from the
rights provided for in Article 10 of Regulation (EEC) No 1612/68 of the Council of 15th October,
1968 on freedom of movement for workers within the community, a national of a non-Member State
married to a citizen of the Union 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.
2. Article 10 of Regulation No 1612/68 is not applicable where the national of a Member State and the
national of a non-Member State have entered into a marriage of convenience in order to circumvent
the provisions relating to entry and residence of nationals of non-Member States.
3. Where the marriage between a national of a Member State and a national of a non-Member State is
genuine, the fact that the spouses installed themselves in another Member State in order, on their
return to the Member State of which the former is a national, to obtain the benefit of rights conferred
by Community law is not relevant to an assessment of their legal situation by the competent authorities
of the latter State.
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4. Where a national of a Member State married to a national of a non-Member State with whom she is
living in another Member State returns to the Member State of which she is a national in order to work
there as an employed person and, at the time of her return, her spouse does not enjoy the rights
provided for in Article 10 of Regulation No 1612/68 because he has not resided lawfully on the
territory of a Member State, the competent authorities of the first-mentioned Member State, in
assessing the application by the spouse to enter and remain in that Member State, must none the less
have regard to the right to respect for family life under Article 8 of the European Convention for the
protection of Human Rights and Fundamental Freedoms signed at Rome on 4th November, 1950,
provided that the marriage is genuine.
The Court stated at paras. 48 to 54 inclusive:-
“48. The same consequences flow from Article 39 EC if the national of the Member State concerned
envisages a return to that Member State in order to work there as an employed person. Consequently,
where the spouse is a national of a non-Member State he must enjoy at least the same rights as would
be granted to him by Article 10 of Regulation No 1612/68 if his or her spouse entered and resided in
another Member State.
49. However, Regulation No 1612/68 covers only freedom of movement within the Community. It is
silent as to the rights of a national of a non-Member State, who is the spouse of a citizen of the Union,
in regard to access to the territory of the Community.
50. In order to benefit in a situation such as that at issue in the main proceedings from the rights
provided for in Article 10 of Regulation No 1612/68, the national of a non-Member State, who is the
spouse of a citizen of the Union, 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.
51. That interpretation is consistent with the structure of the Community provisions seeking to secure
freedom of movement for workers within the Community, whose exercise must not penalise the
migrant worker and his family.
52. Where a citizen of the Union, established in a Member State and married to a national of a non-
Member State with a right to remain in that Member State, moves to another Member State in order to
work there as an employed person, that move must not result in the loss of the opportunity lawfully to
live together, which is the reason why Article 10 of Regulation No 1612/68 confers on such spouse the
right to install himself in that other Member State.
53. Conversely, where a citizen of the Union, established in a Member State and married to a national
of a non-Member State without the right to remain in that Member State, moves to another Member
State in order to work there as an employed person, the fact that that person's spouse has no right
under Article 10 of Regulation No 1612/68 to install himself with that person in the other Member
State cannot constitute less favourable treatment than that which they enjoyed before the citizen made
use of the opportunities afforded by the Treaty as regards movement of persons. Accordingly, the
absence of such a right is not such as to deter the citizen of the Union from exercising the rights in
regard to freedom of movement conferred by Article 39 EC.
54. The same applies where a citizen of the Union married to a national of a non-Member State returns
to the Member State of which he or she is a national in order to work there as an employed person. If
the citizen's spouse has a valid right to remain in another Member State, Article 10 of Regulation No
1612/68 applies so that the citizen of the Union is not deterred from exercising his or her right to
freedom of movement on returning to the Member State of which he or she is a national. If,
conversely, that citizen's spouse does not already have a valid right to remain in another Member
State, the absence of any right of the spouse under Article 10 aforesaid to install himself or herself
with the citizen of the Union does not have a dissuasive effect in that regard.”
The ruling therefore, was that the non-national spouse was not entitled to avail of the provisions of
Regulation No. 1612/68 unless he was lawfully resident in another EU Member State. I am satisfied
that it is this judgment that permits the consideration of whether or not a non-national spouse of a
Member of an EU State was lawfully resident in another Member State. In my view S.I. No. 226/2006
reflects and gives effect to the 2004 Directive and the decision of the European Court of Justice in
Akrich. I am of the view that the 2006 Regulations amount to an administrative implementation of the
policies and principles of the 2004 Directive and take account of the scope and latitude afforded to
individual Member States to enact and maintain the integrity of their respective immigration laws. I
am not persuaded that the restrictive provisions of Regulation 3(2) of S.I. No. 226/2006 do other than
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make supplementary and consequential provision for the purposes of the Regulations having due
regard both to the Directive and the jurisprudence of the Court of Justice as enunciated in Akrich. I am
satisfied that the 2006 Regulations are intra vires and in accordance with law.

Does the first named applicant come within the intended scope of the Directive?
The question arises to whether or not the first named applicant comes within the scope of Directive
2004/38/EC and if so, is this fact reflected in the 2006 Regulations?
Clearly, at the applicants’ alleged date of entry to this State they were not married nor had they
contracted a registered partnership. Accordingly, whereas the second named applicant clearly fulfils
the definition of “Union citizen”, the first named applicant does not come within the definition of
“family member” as set out in Article 2 of the Directive.
Ireland is the “host Member State” within the meaning of part 3 of Article 2, a status which obviously
can only be achieved when the “Union citizen” moves to the Member State, in order to exercise
his/her right of free movement and residence.
The intended beneficiaries of the Directive are clearly Unions citizens (such as the second named
applicant) who have moved to or reside in a Member State other than that of which they are a national
and to their family members who accompany or join them. The first named applicant was not such
when the applicants entered Ireland. Clause 2 of Article 3 directs Member States to facilitate entry and
residence, inter alia, of family members, irrespective of their nationality, not falling under the
definition in point 2 of Article 2, who, in the country from which they have come, are dependents or
members of the household of a Union citizen having the primary right of residence or, for serious
health grounds, strictly require the personal care of the family member by the Union citizen.
I think this helps us in identifying the intended scope of the Directive. Article 3 provides that the
Directive applies to all Union citizens who move to or reside in a Member State other than that of
which they are a national and to their family members, as defined in point 2 of Article 2, who
accompany or join them. The Directive also covers family members, irrespective of nationality, who,
in the country from which they have come are dependents. It is clear, in my view, that the Directive is
intended to apply to families which were established in a Member State prior to the move to the host
Member State. It is intended to facilitate family members lawfully resident in another Member State
who seek to join or accompany a spouse who is in employment or self-employment in the State i.e. the
host State.
When the applicants came to Ireland they knew that the first named applicant was residing illegally in
the United Kingdom having previously been refused asylum in Belgium. According to the affidavit
filed on their behalf it would appear that it was the intention of the parties to formalise their
relationship by marrying and residing within the State. It seems to me that the intention of the first
named applicant in filing his asylum application was to buy time. He wanted to set up a temporary
residence in the State with a view to the real aim, which was coming to live in this country, namely, to
circumvent the immigration laws of this State. In ordinary circumstances, the applicant would require
a valid visa to enter this State. He has not produced one, nor would it appear, has he applied for one.
From the evidence before the court it would seem that the applicant has no valid legal right of
residence in any EU Member State.

Constitutional Rights
On behalf of the applicants, Mr. Shipsey S.C. contended that the marital status enjoyed by the
applicants since their marriage on 15th May, 2006, conferred upon them constitutionally protected
rights. It is argued that the transfer order would result in the separation of the applicants and, as such,
would be disproportionate and without lawful justification. It must be said that no consideration
whatsoever was given to the marital status of the applicants when the transfer order was made,
because the respondents simply did not know about it. Accordingly, in making the decision to transfer
the first named applicant, proportionality could hardly arise. The applicants argue that they were being
forced to live apart outside the jurisdiction of this State.
The applicants’ argument dovetails into a further submission with regard to the applicants’ right to
respect for their private and family life under Article 8 of the European Convention of Human Rights
and I will turn to this briefly. It would seem that Article 8 would not necessarily depend on the
existence of a lawful marriage in order that its provisions might be invoked.
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As a married couple under the Constitution it is clear that such a right is not absolute. In Gashi v.
Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (Unreported, Clarke
J., 3rd December 2004) referring the rights of the wife of a deported person and their Irish born child,
Clarke J., says at p. 7 et seq.:-
“However it is clear that both of them enjoy a non-absolute constitutional entitlement to live together
as a family within the State but that the first named respondent may decide for good and sufficient
reason that the husband be deported (or more accurately in this case remain outside the State by virtue
of a refusal to revoke a deportation order) even though this affects the entitlements of the other parties
provided that the first named respondent makes his decision having regard to all the circumstances of
the case in a manner which is not disproportionate to the ends sought to be achieved.
That the length of time during which a family has been established in the State may be a relevant
circumstance in such a consideration is clear from the quotation with approval by Denham J. in the
A.O. & D. L. case of a passage from the decision of the House of Lords in R (Mahmood) v. Secretary
of State for the Home Department [2001] 1 W.L.R. 840 where Lord Philips held (in summarising the
conclusions as to the approach of the Commission and the European Court of Human Rights in
relation to potential conflicts between the respect for family life and the enforcement of immigration
controls) that removal or exclusion of a family member from a State where other members of the
family are lawfully resident will not necessarily infringe Article 8 of the European Convention on
Human Rights provided that there are no insurmountable obstacles to the family living together in the
country to which the excluded member is to depart and even where this involves a degree of hardship
for some or all members of the family but that nonetheless Article 8 is likely to be violated by the
expulsion of a member of a family that have been long established in a State if the circumstances are
such that it is not reasonable to expect the other members of the family to follow the member expelled.
…
It is also clear from the judgment of Denham J. referred to above that the interpretation of the
balancing to be achieved in respect of family rights under Article 8 of the Convention is at least
similar to the balancing exercise that needs to be engaged in where the family rights guaranteed by
Article 41 of the Constitution are involved.”
Since the balancing exercise under the Constitution is similar to that which is required under Article 8
it would be useful at this juncture to move straight to consideration of the applicants’ Convention
rights.

Convention rights
Article 8 of the European Convention of Human Rights provides as follows:-
“Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.”
The respondents argue that such interference as might occur with the applicants’ private and family
life as a consequence of carrying out the transfer of the first named applicant to the Kingdom of
Belgium would come within the rubric of para. 2 of Article 8. It is contended that a legitimate aim of
the State, is to have regard to the integrity of the asylum and the immigration policy in the context of
public order provided the principles of proportionality in respect of human rights are respected. It is
argued that the case law of the European Court of Human Rights does not, in and of itself, guarantee a
right to enter or remain in a particular country nor does it oblige a signatory State to accept the
preferred State of residence of a married couple if one of the spouses does not have a legal right to
remain in the State. The European Court of Human Rights accepts that the State does have the right to
control the entry of non-nationals into its territory. Summarising the approach of the European Court
of Human Rights on this issue in R. (Mahmood) v. Home Secretary [2001] 1 W.L.R. 840 Lord Philips
says as follows at p. 861:-
“1. A State has a right under International Law to control the entry of non-nationals into its territory,
subject always to its treaty obligations.
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2. Article 8 does not impose on a state any general obligation to respect the choice of residence of a
married couple.
3. Removal or exclusion of one family member from the state where other members of the family are
lawfully resident will not necessarily infringe Article 8 provided there are no insurmountable obstacles
to the family living together in the country of origin of the family member excluded, even where this
involves a degree of hardship for some or all members of the family.
4. Article 8 is likely to be violated by the expulsion of a member of a family that has long been
established in a state if the circumstances are such that it is not reasonable to expect the other members
of the family to follow the member expelled.
. Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were
precarious, militates against a finding that an order excluding the latter violates Article 8.
6. Further interference with the family rights justified in the interests of controlling immigration will
depend on (i) the facts of the case and (ii) the circumstances prevailing in the state whose action is
impugned.”
The applicants referred to several decisions of the European Court of Human Rights (for example
Boultif v. Switzerland, [2001] 33 E.H.R.R. 1179 and Yildiz v. Austria, 36 E.H.R.R. 553), cases where a
ban on residence was judged by the court, inter alia, to be disproportionate even in circumstances
where the parties affected by such residential ban were guilty of criminal offences.
Section 3(1) of the European Convention on Human Rights Act, 2003 provides:-
“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State
shall perform its functions in a manner compatible with the State’s obligations under the Convention
provisions.”

Conclusions
The first named respondent is, without doubt, an “organ of the State”. Thus, in performing the
executive function of making the transfer order, the first named respondent could not actively
disregard or shut his eyes to a potential breach of a person’s rights under the Convention. However,
the question of compatibility has to be viewed on an individual, case by case basis and viewed against
the backdrop of the jurisprudence of the European Court of Human Rights. Thus, for example, in
viewing the actions of the Minister, one must have due regard to the rights of the State to govern its
own immigration policies in accordance with the Constitution and the European Court of Human
Rights and to maintain the integrity of same.
When the transfer order was signed, as already noted, the Minister was not aware that the applicants
were married. Retracing our steps, the first named applicant entered the jurisdiction of this State
illegally. He did not disclose that he had failed in his asylum claim in Belgium and I am satisfied that
the asylum application which he made upon entry to the State was made solely for the purpose of
obtaining such entry and staying here. His dishonesty in making his application for asylum is
something which should, in my view, properly weigh in the balance in considering the applicants’
constitutional and Convention rights. Were it not for his right to process his asylum application, he had
no right, whatsoever, to reside in the State. It is probable that the second named applicant was fully
aware of this state of affairs.
When the first named applicant applied for residence as a spouse of a citizen of a Member State, the
application was considered under S.I. No 226/2006 and was refused. There is no apparent infirmity in
that decision. The State was not obliged to permit the first named applicant to reside here simply
because the applicants wished that such be the case.
The consequence is that the first named applicant would be transferred to another European Union
country where, as proclaimed in the preamble of the Dublin II Regulation, rights of all nationals, and
the rights of all parties under the European Convention of Human Rights, will be respected. This, of
course, will include his rights under Article 8. The first named applicant made no submissions to the
Refugee Appeals Commissioner under Article 3(2) of the Dublin II Regulation which permits a
derogation that a Member State may examine an application for asylum notwithstanding that another
Member State may be responsible for examining the application. The applicant could have argued that
his application should be examined in this State rather than Belgium. He chose not to do so.
The first named applicant, who has no right to remain within this jurisdiction, is being transferred to a
jurisdiction that will acknowledge, respect and have due regard to his rights under the European
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Convention on Human Rights, including his rights under Article 8 of the Convention. The Kingdom of
Belgium is an appropriate place for his application to be dealt with. There is no evidence that there is
any difficulty in the second named applicant joining her husband in Belgium and residing with him
there until such time as his asylum application is finally determined. So too will her rights as an EU
citizen be respected.
Circumstances may arise, for example, where a married person or persons might be removed to a
jurisdiction where such couples’ rights might not be vindicated, but that is not the case here.
I dismiss this application.

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