The Court of Justice of the European Union (CJEU) has clarified the rights of third country nationals where an EU citizen spouse leaves the State, in a preliminary reference from the Irish courts.
In early 2018, the Irish High Court made a request for a preliminary ruling concerning the interpretation of Articles 14, 15, 27 and 28 of Directive 2004/38/EC (the Directive) on the right of EU citizens and their family members to move and reside freely within the territory of the Member States. In this case, a third country national was married to a Portuguese national who was exercising his right to freedom of movement. They lived for some time in Ireland by virtue of the derived right of residence conferred by Article 6(2) of the Directive. Her spouse returned to Portugal and the impact of this was that she no longer enjoyed the status of ‘beneficiary’ within the meaning of Article 3(1) of the Directive.
Following the return of her spouse from Ireland to Portugal, the Minister for Justice made a decision to deport the woman. She argued that her residence in Ireland could not be brought to an end by a deportation order which automatically imposed an indefinite ban on entry into the territory, but only to an expulsion decision adopted in a manner consistent with the protection afforded under the Directive, and in particular Articles 27 and 28.
The Court confirmed that the third country national no longer fulfilled the requirement of ‘accompanying or joining a Union citizen’ imposed by Article 3(1) but found that this alone did not mean that an expulsion decision fell outside the scope of the Directive. The Directive did not only contain rules governing the conditions under which residence rights may be obtained and/or retained, but also rules governing the situation where an entitlement to one of those rights is lost.
Thus, the Court found that Article 15 of the Directive provided that the procedural safeguards under Articles 30 and 31 were to apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health. To hold otherwise would deprive that provision of a large part of its substance and practical effect. Notably, Article 15(3) of the Directive provides that a host Member State may not impose a ban on entry in the context of an expulsion decision.
In this case, following the departure of her spouse, the third country national lost her right of residence as she no longer satisfied the condition requiring that she accompany or join a Union citizen exercising their right to freedom of movement, which led to the rejection of her claim seeking a right of residence under Article 7. Since such a situation was not covered by any of the situations referred to in Article 12(2) and Article 13(2) of the Directive, Ireland could make an expulsion decision regarding the third country national under Article 15. However, such a decision may be taken only in compliance with the requirements laid down in that provision which references the procedural safeguards provided by Articles 30 and 31. As Article 15 was applicable, the safeguards laid down in Articles 30 and 31 were applicable ‘by analogy’. The expression ‘by analogy’ must be understood as meaning that the provisions of Articles 30 and 31 of the Directive, in the context of Article 15 thereof, only if they can actually be applied, with the necessary adjustments, if appropriate, to decisions made on grounds other than public policy, public security or public health.
As regards the provisions laid down in Articles 30 and 31, it should be noted that, since these procedures form part of the ‘implementation of Union law’ within the meaning of Article 51(1) of the Charter of Fundamental Rights of the European Union, the rules governing such procedures must comply with the requirements pertaining to the right to an effective remedy enshrined in Article 47 of that charter. Moreover, in accordance with Article 31(3) the redress procedures must not only allow for an examination of the legality of the decision concerned, as well as of the facts and circumstances on which it was based, but also ensure that the decision in question was not disproportionate.
Therefore the Court concluded that Article 15 of the Directive was to be interpreted as being applicable to a decision to expel a third-country national on the ground that that person no longer had a right of residence under the Directive in a situation where the third-country national concerned married a Union citizen at a time when that citizen was exercising his right to freedom of movement by moving to and residing with that third-country national in the host Member State and, subsequently, the Union citizen returned to the Member State of which he was a national. It follows that the relevant safeguards laid down in Articles 30 and 31 were applicable when such an expulsion decision was adopted and it was not possible, under any circumstances, for such a decision to impose a ban on entry into the territory.
Click here for the full decision in Chenchooliah v Minister for Justice.